Tulsa Law Review
Volume 52 | Issue 1
Article 1
Fall 2016
Is the Internet Rotting Oklahoma Law?
Lee F. Peoples
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IS THE INTERNET ROTTING OKLAHOMA LAW?
Lee F. Peoples
I.
INTRODUCTION
Internet research is omnipresent in the lives of most people. 1 Smart phones are
quickly consulted to verify facts, check the weather, look up movie times, or perform a
number of other tasks without hesitation. The word “Google” entered the lexicon as the
name of a popular search engine but is now used as a verb to describe searching for information on the Internet.2 The sheer amount of information available online is mind-boggling. The two-hundred terabytes of information currently searchable in Google represents
only 0.004 percent of the total size of the Internet. 3
The lure of quickly and easily locating information online is very tempting to appellate jurists especially when confronting incomplete appellate records or factually complex
cases. Adding to this temptation is the increasing number of citations to Internet resources
appearing in briefs filed with appellate courts.
Traditionally, judges do not search online for facts related to cases before them. Jurists embody the “passive role of a neutral decision maker.” 4 However, judicial Internet
research into the facts of cases before courts is on the rise.5 Whether or not this research
is legally permissible depends on a number of factors including the type of information
acquired, its source, how it is used, and when it was acquired.6 Independent judicial re-
 Frederick Charles Hicks Professor of Law and Law Library Director. I would like to thank Timothy Gatton,
Head of Reference, Oklahoma City University Law Library, for his assistance researching this article and Claire
DeMarco, Research Librarian, Harvard Law School Library for her assistance with questions relating to
Perma.cc. Any errors or omissions are the author’s sole responsibility. This article is dedicated to Emma and
Amelia.
1. As of June, 44.3% of the world’s population were using the Internet. Internet Growth Statistics, INTERNET
WORLD STATS (December 2, 2015, 2:28 PM), http://www.Internetworldstats.com/emarketing.htm
[http://perma.cc/U7P4-F6RZ].
2. Definition
of
Google,
GOOGLE,
https://www.google.com/webhp?sourceid=chrome-instant&ion=1&espv=2&ie=UTF-8#q=define%3A%20google [https://perma.cc/STF6-H2BB].
3. Do You Know How Big the Internet Really Is?, WEBSITE MAGAZINE (Jul. 22, 2014), http://www.websitemagazine.com/content/blogs/posts/archive/2014/07/22/do-you-know-how-big-the-Internet-really-is-infographic.aspx [http://perma.cc/S632-N83W].
4. Layne S. Keele, When the Mountain Goes to Mohammed: The Internet and Judicial Decision-Making,
45 N.M. L. REV. 125, 126 (2014) citing Mont. Code of Jud. Conduct R. 2.9(C) (2008).
5. Elizabeth G. Thornburg, The Lure of the Internet and the Limits on Judicial Fact Research, 38 No. 4
LITIGATION 41, 42 (2002).
6. Elizabeth G. Thornburg, The Curious Appellate Judge: Ethical Limits on Independent Research, 28 REV.
LITIG. 131, 142 (2008).
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search into the facts of cases pending before a court potentially violates the rules of evidence, due process rights, the Sixth and Seventh Amendments, and the traditions of the
adversarial system.
The citation of Internet resources in judicial opinions has additional consequences
beyond the legal issues noted above. The content of webpages changes rapidly. Information available online today is easily changed or made unavailable tomorrow. Previous
studies have demonstrated that “an alarming number of Internet resources cited in legal
materials no longer work.”7 If these disappearing resources were cited to support the logic
or reasoning of an appellate judicial opinion, researchers may justifiably question the opinion’s authoritativeness. The unavailability of important sources cited in appellate judicial
opinions has the potential to weaken stare decisis and threatens the stability and growth of
the law.
Part I of this article will examine the ethical, procedural, evidentiary, and common
law rules governing independent Internet research by the Oklahoma appellate judiciary. A
proposed amendment to Oklahoma’s Code of Judicial Conduct is offered to ensure that
independent judicial factual research does not violate the rights of litigants. Part II presents
the results of a study of citations to Internet resources in appellate judicial opinions and
briefs. The prevalence of link and reference rot in opinions and briefs is examined. Link
rot refers to a link that does not retrieve any information. Reference rot refers to a link that
functions but does not retrieve the information it was cited for. Part III discusses the consequences of link and reference rot in Oklahoma appellate opinions and briefs. The article
concludes with recommendations for improvement.
The purpose of this article is not to criticize the substance of appellate opinions or
briefs, their authors, or the Oklahoma appellate courts. These findings and suggestions are
offered to make cited sources more accessible, to aid the development of Oklahoma law,
and help ensure its long-term stability.
II.
INDEPENDENT JUDICIAL INTERNET RESEARCH AND DECISION MAKING
Appellate judicial opinions cite Internet resources for a variety of reasons. 8 Internet
resources are cited with some frequency in briefs and other pleadings filed with Oklahoma
appellate courts.9 In some instances Oklahoma appellate courts cite Internet resources discovered through independent legal or factual Internet research.
Traditionally, appellate courts do not look for facts beyond the trial court record and
briefs filed on appeal. When an appellate judge is confronted with a record lacking additional facts needed to resolve a case, the correct procedure is to “remand the case to the
7. Lee F. Peoples, Internet Citations in Oklahoma Attorney General’s Opinions, 107 LAW LIBR. J. 348
(2015) [hereinafter Peoples, Internet Citations in Okla. Att'y Gen. Opinions].
8. Raizel Liebler and June Liebert, Something Rotten in the State of Legal Citation: The Life Span of A
United States Supreme Court Citation Containing an Internet Link (1996-2010), 15 YALE J. L. & TECH. 273, 279
(2013).
9. See section III. D infra.
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trial court with directions to find the facts.” 10 Independent judicial research into the facts
of a case has been cited as grounds for appeal in cases long predating the Internet. 11
The practice of judges conducting Internet researching and including their findings
in opinions is controversial.12 The majority of citations to Internet resources for factual
information in Oklahoma appellate opinions appear to have been cited first by the trial
court or by the litigants in court filings. In a small number of opinions examined in this
study (twelve out of eighty-two) the appellate court conducted independent factual research on the Internet and included a citation to an Internet resource in the opinion. 13
Independent judicial research is governed by a variety of sources including rules of
judicial ethics, evidentiary rules, constitutional and procedural principles, and basic principles of adversarial justice.14 Concern over “the growing temptation to do factual research” lead the American Bar Association’s Joint Commission to Evaluate the Code of
Judicial Conduct to issue an amendment to the Code in 2007. 15 Model Code Rule 2.9(C)
was amended to state that “[a] judge shall not investigate facts in a matter independently,
and shall consider only the evidence presented and any facts that may properly be judicially noted.”16 Comment 6 provides that “[t]he prohibition against a judge investigating
the facts in a matter extends to information available in all mediums, including electronic.”17
Oklahoma adopted a modified version of Rule 2.9(C) in 2011.18 Italicized text is
used to indicate where Oklahoma’s rule differs from the ABA Model Code.
A judge shall not investigate facts in a matter independently, and shall consider only the
evidence presented and any facts that may properly be judicially noticed. While a judge shall
not independently investigate facts in a case, and shall consider only the evidence presented,
a judge may seek information of a general nature that does not bear on a disputed evidentiary fact or influence the judge’s opinion of the substantive merits a specific case.
Comment:
10. HARVEY D. ELLIS, JR. & CLYDE A. MUCHMORE, 5 OKLA. PRAC., APPELLATE PRACTICE § 15:156 (Supp.
2015) citing Darrow v. Spencer, 1978 OK 107, ¶13, 581 P.2d 1309, 1313–14; Bramble v. Caywood, 1944 OK
45, 146 P.2d 587, 591; Brown v. Nicholson, 1997 OK 32, ¶13, 935 P.2d 319, 323; Pugh v. Gilbreath, 1977 Okla.
Civ. App. 46, ¶11, 571 P.2d 1241, 1244.
11. Trappe v. Freeborn, 1955 OK 259, 288 P.2d 1105, 1107 (“Plaintiff complains that the trial court made
independent research and discovered additional evidence which was the basis of the judgment.”) See also Sanders
v. State, 96 Okla. Crim. 397, 398, 256 P.2d 205, 207 (1953).
12. For a small sampling of the relevant issues see: David J. Dansky, The Google Knows Many Things: Judicial Notice in the Internet Era, COLO. LAW. 19 (2010); Lee F. Peoples, The Citation of Blogs in Judicial Opinions, 13 TUL. J. TECH. & INTELL. PROP. 39 (2010) [hereinafter Peoples, Citation of Blogs]; and, Lee F. Peoples,
The Citation of Wikipedia in Judicial Opinions, 12 YALE J. L. & TECH. 1 (2010) [hereinafter Peoples, Citation
of Wikipedia].
13. See section III for a complete explanation of the methodology used to locate these judicial opinions. The
physical case files of relevant appellate cases were examined to determine if the Internet resource(s) cited in the
opinions were cited first in a filing by a party or by the trial court. Cases files were not examined for opinions
citing Internet resources for legal research or factual information that was cited to support dicta.
14. Thornburg, The Curious Appellate Judge: Ethical Limits on Independent Research, supra note 6, at 135.
15. Id.
16. Id.
17. Id.
18. The rule is codified in the Code of Judicial Conduct at OKLA. STAT. tit. 5 ch. 1, app. 4, Code of Jud.
Conduct, Canon 2.9(C) (2015). The rule became effective April 15, 2011.
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[6] The prohibition in the rule against a judge investigating the facts in a case independently
or through a member of the judge’s staff extends to information in all mediums, including
electronic ones.
[7] The prohibition does not apply to a judge’s effort to obtain general information about a
specialized area of knowledge that does not include the application of such information in a
specific case.19
The version of Rule 2.9 adopted by Oklahoma gives judges additional leeway beyond the ABA Model Code to conduct factual investigations of a limited scope. Oklahoma
is not the only state to adopt a modified version of the ABA Model Code. The version
adopted by Montana allows courts “to examine online criminal records, driving records,
and court records.”20 Judges in Connecticut may conduct independent research as long as
they are not “serving as factfinders.”21 The version adopted in Delaware did not include a
prohibition on independent judicial factual investigation.22 Missouri’s version did not specifically mention research using electronic mediums.23
A.
Independent Judicial Research into Legislative Facts
By allowing judges to “seek information of a general nature that does not bear on a
disputed evidentiary fact,” Oklahoma’s Rule 2.9(C) affirms the longstanding practice of
judges conducting independent research into “legislative facts.” Legislative facts are “general and do not concern the immediate parties.” 24 The Evidence Subcommittee Notes accompanying the Oklahoma Evidence Code provisions on judicial notice state that legislative facts are “not properly within the sphere of the rules of evidence.” 25 The commentary
incorporates the position of Professor Kenneth Culp Davis “that judge made law would
stop growing if judges, in thinking about questions of law and policy, were forbidden to
take into account the facts they believe, as distinguished from facts which are ‘clearly’ . . .
within the domain of the dispute.”26
Professor Leo Winery offers an additional explanation in his treatise OKLAHOMA
EVIDENCE:
It is appropriate for the courts to consider pertinent data in the process of legal reasoning and
in developing and shaping the content of the law without being restricted to the requirement
of indisputability which is more appropriately applied to matters of fact which are disputed
by the parties. In such cases the judicial notice of legislative facts is governed by the developing common law and not [the evidence code].27
Oklahoma appellate opinions have cited Internet resources when conducting independent judicial research into legislative facts. In Thomas v. Wheat, the Oklahoma Court
19. Id.
20. Keele, supra note 4, at 127 (citing Mont. Code of Jud. Conduct R. 2.9(C) (2008)).
21. Id. at 128 (citing Conn. Code of Jud. Conduct R. 2.9(C) (2011)).
22. Id. at 127 (citing DEL. JUDGES’ CODE OF JUD. CONDUCT R. 2.9 (2008)).
23. Id. (citing MO. CODE OF JUD. CONDUCT R. 2-2.9 (2013)).
24. Evidence Subcommittee’s Note to OKLA. STAT. tit. 12, § 2202 (2015)(citing Professor Kenneth Culp
Davis’ classic treatise, ADMINISTRATIVE LAW, 296 (1972)).
25. Id.
26. Id.
27. LEO H. WINERY, 2 OKLA. PRAC., OKLA. EVIDENCE § 6.02 (Supp. 2015).
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of Civil Appeals remanded a trial court’s summary judgment ruling to resolve factual issues.28 The case involved a worker hit by an errant golf ball while painting a house adjacent to a golf course. The appellee claims to have warned the painter by yelling “fore”
after hitting a hook shot. The court conducted its own research into the meaning of the
word “fore” and cited the website of the United States Golf Association and the website
About.com.29
Although the Opinion was issued before Rule 2.9(C) came into effect, the court’s
independent Internet research would have been permitted by the rule. The meaning of the
word “fore” was not in dispute in the case, was a “legislative fact,” and could be independently researched by the court under the evidentiary doctrine discussed above. A review of the appellate record reveals that the court could have cited a definition of the word
“fore” cited by the Appellee in a trial court filing instead of conducting independent research to define the term.30
Several Oklahoma appellate opinions issued after the effective date of Rule 2.9(C)
include citations to Internet resources for legislative facts discovered through independent
judicial research. The opinion in National American Ins. Co. v. Gerlicher Co., LLC cited
the website of the EFIS Industry Members Association for a definition of EFIS. 31 The case
involved a dispute over whether insurance policy language provided coverage for EFIS
material. The definition of EFIS material was not at issue in the case and would be considered “information of a general nature that does not bear on a disputed evidentiary
fact.”32
The Oklahoma Supreme Court has cited Internet resources when conducting independent research into legislative facts. In State ex. rel. Oklahoma Bar Ass’n v. Zannotti,
the Court cited statistics about the impact and frequency of domestic violence in Oklahoma.33 The case involved disciplinary action against a lawyer who pled no contest to
charges of domestic violence involving a client he was having a sexual relationship with.
The statistics were cited to support the opinion’s reasoning that incidents of domestic violence are on the rise and it is “incumbent on the Court to protect the public by sending a
message to other lawyers that this misconduct is considered a serious breach of a lawyer’s
ethical duty and will not be tolerated.”34 This independent research into background facts
not at issue in the case is permissible under Rule 2.9(C) and is consistent with the use of
28. Thomas v. Wheat, 2006 Okla. Civ. App. 106, 143 P.3d 767.
29. Thomas, 2006 Okla. Civ. App. 106, ¶ 3, 143 P.3d 767 at 768.
30. Plaintiff’s Response and Objection to Defendant’s Motion for Summary Judgment, CJ-2002-5326 (Nov.
23, 2005).
31. 2011 Okla. Civ. App. 94, ¶ 2, 260 P.3d 1279, 1280. See also, Bank of Am., N.A. v. Moody, 2014 Okla.
Civ. App. 105, ¶ 8 (citing an online version of a handbook for the Home Affordable Modification Program
(HAMP) for a general explanation of how the HAMP program works. This fact was of a general nature and did
not bear on a disputed evidentiary fact in the case. Accordingly, the court’s independent judicial factual research
was permissible under Rule 2.9).
32. OKLA. STAT. tit. 5 ch. 1, app. 4, Code of Jud. Conduct, Canon 2.9(C) (2015).
33. 2014 OK 25, 330 P.3d 11, 17, citing CENTERS FOR DISEASE CONTROL AND PREVENTION, NATIONAL
INTIMATE PARTNER AND SEXUAL VIOLENCE SURVEY 2010 SUMMARY REPORT (2010) available at http://www.
cdc.gov/violenceprevention/pdf/cdc_nisvs_overview_insert_final-a.pdf [http://perma.cc/GX2A-7A5W].
34. Zannotti, 2014 OK 25, ¶ 24, 330 P.3d at 17.
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legislative facts by appellate courts when framing legal rules and dealing with law and
policy questions.35
B.
Independent Judicial Research into Adjudicative Facts
The rules of evidence, judicial ethics, due process concerns, and traditions of the
adversarial system prohibit independent judicial research into adjudicative facts. In contrast to legislative facts, adjudicative facts “are facts about the parties” and “must be ascertained from formal proof.”36 Rule 2.9(C) allows judges to seek information of a general
nature but specifically limits judges from seeking information bearing on a disputed evidentiary fact. The term “disputed evidentiary fact” is synonymous with the term “adjudicative fact.”37 By using the language “disputed evidentiary fact” the rule restricts judges
from conducting independent research into adjudicative facts. 38
A 1953 opinion of the Oklahoma Criminal Court of Appeals established a prohibition against independent judicial research into adjudicative facts. In Sanders v. State, a
pilot was prosecuted for operating an aircraft under the influence of alcohol. 39 The trial
judge conducted independent factual research into an adjudicative fact in the case. During
sentencing the trial judge stated on the record that he contacted the airport control tower
to determine how many and what type of planes used the airport on a regular basis. 40 The
appellate court concluded that the trial judge’s private inquiry into this adjudicative fact
was “fundamental and reversible error” and could not be judicially noticed. 41 The opinion
establishes a historical precedent that judges should not independently research adjudicative facts.42
35. Thornburg, The Curious Appellate Judge: Ethical Limits on Independent Research, supra note 6, at 152.
36. State ex rel. Blankenship v. Freeman, 1968 OK 54, 440 P.2d 744, 758.
37. See ROBERT FITZPATRICK, ET AL., 38 MASS. PRAC., ADMINISTRATIVE LAW & PRACTICE § 312
(2015)(equating disputed evidentiary facts with adjudicative facts) See also, Keele, supra note 4, at 147 (facts
about the parties are adjudicative facts).
38. The term “disputed evidentiary fact” is also found in an early version of Oklahoma’s Code of Judicial
Conduct. Before its amendment in 2011, the Code required judicial disqualification when a judge had personal
knowledge of “disputed evidentiary facts.” OKLA. STAT. tit. 5 ch. 1, app. 4, Code of Jud. Conduct, Canon
3(E)(1)(a) (2000). The language was adopted from the ABA Model Code of Judicial Conduct. Interpretations of
the term “disputed evidentiary fact” from other jurisdictions reinforce the term’s synonymy with adjudicative
facts. See In re Yengo, 371 A.2d 41 (N.J. 1977) (disqualifying a judge who inspected property that was the
subject matter of litigation); Vaughn v. Shelby Williams of Tennessee Inc., 813 S.W. 2d 132 (Tenn. 1991)(a
judge may not make an off the record investigation of a case); In re Marriage of Donely, 819 S.W. 2d 98 (Mo.
App. 1991)(disqualification was required where a judge conducted an unrecorded interview with a child during
a custody proceeding); and, Plunkett v. Plunkett, 757 S.W. 2d 286 (Mo. App. 1988)(disqualification required
where a judge interviewed a child in chambers without counsel present).
39. 96 Okla. Crim. App. 397, 398, 256 P.2d at 207 (1953).
40. Id.
41. Id. at 209. In Sanders v. State, the Criminal Court of Appeals reviewed transcripts of the trial court’s
sentencing of a defendant who plead guilty to operating an aircraft under the influence of alcohol. The opinion
states that traffic conditions at the airport were “common knowledge of which the court might have taken judicial
notice.” However, the court’s private inquiry into the traffic conditions at the airport was “fundamental and reversible error.” Professor Leo Winery explains that the judge in Sanders v. State could not take judicial notice of
the amount of traffic at the airport if this information was personally obtained from the control tower. WHINERY,
supra note 27, at § 4.02.
42. The case of Trappe, 1955 OK 259, 288 P.2d 1105, 1107 is a historical example of an appeal on the
grounds that the trial court’s judgment was based on independent judicial research into the facts of the case.
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Appellate judicial research into facts not found in the appellate record is generally
prohibited. Oklahoma appellate courts are permitted to decide questions left unresolved
by trial courts only when “material facts are undisputed and remain on the record.” 43 However, Oklahoma appellate courts “will not make first-instance determinations of disputed
law or fact issues. That is the trial court’s function.” 44 When an Oklahoma appellate court
is unable to resolve an issue because the appellate record lacks necessary facts, the case
should be remanded to the trial court with instructions to determine the missing facts.45
C.
Judicial Notice of Adjudicative Facts
Judicial notice “involves the acceptance of a matter of law or fact as true” and has
been called a “substitute for proof by evidence.” 46 Legal scholars have documented an
increase in courts taking judicial notice of Internet resources.47 Studies have found an inconsistent application of judicial notice rules to Internet sources in courts from other jurisdictions.48
Judicial notice of adjudicative facts is governed by the Oklahoma Evidence code.
To be judicially noticed, an adjudicative fact must meet the following standard set out in
the evidence code. Facts must “not be subject to reasonable dispute in that it is either: (1)
[g]enerally known within the territorial jurisdiction of the trial court; or (2) [c]apable of
accurate and ready determination by resort to sources whose accuracy cannot reasonably
be questioned.”49
The evidence code allows judicial notice to be taken at any stage in a proceeding. 50
Generally, this means notice of adjudicative facts may be taken by a trial or appellate
court.51 However, Oklahoma appellate courts have refused to take judicial notice of facts
“which are not part of the record on appeal or were not before the trial court when its
decision was made.”52
Limited exceptions allow appellate courts to take judicial notice of court dockets and
records,53 of prior related appellate proceedings,54 and of a courts “own records in litigation interconnected with an appeal [before the court].” 55
Independent judicial research into adjudicative facts raises due process concerns and
is not in keeping with the traditions of the American legal system. When judges conduct
43. ELLIS & MUCHMORE, supra note 10, at § 15:155 (2014 ed.) citing Williams v. Frey, 1938 OK 280, 78
P.2d 1052.
44. Id. citing Bivins v. State ex rel. Oklahoma Memorial Hosp., 1996 OK 5, ¶19, 917 P.2d 456, 464.
45. Id. citing Darrow v. Spencer, 1978 OK 107, ¶13, 581 P.2d 1309, 1313–14.
46. WHINERY, supra note 27, at § 4.01.
47. Keele, supra note 4, at 157.
48. Thornburg, The Curious Appellate Judge: Ethical Limits on Independent Research, supra note 6, at 161.
49. OKLA. STAT. tit. 12, § 2202 (2015).
50. Id. at § 2203 (c).
51. WHINERY, supra note 27, at § 7.06.
52. EMMA V. ROLLS, JEAN E. GILES, & LAURIE W. JONES, OKLAHOMA TRIAL PRACTICE, § 6:9 (2009).
53. ELLIS & MUCHMORE, supra note 10, at § 12:2 (2014 ed.) citing Sup. Ct. Rule 1.1(d).
54. Id. citing Timmons v. Royal Globe Ins. Co., 1985 OK 76, ¶8 n. 8, 713 P.2d 589, 592 n. 8.
55. Id. citing Smith v. Hines, 2013 OK 65, ¶2.
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independent research into adjudicative facts without giving the parties notice or an opportunity to be heard, they run the risk of violating the parties’ due process rights.56 Appellate
courts must be cautious to not invade the fact-finding province of the jury by locating and
using adjudicative facts. Doing so could violate a litigant’s Sixth or Seventh Amendment
jury trial rights.57 Independent judicial fact-finding runs contrary to the traditions of the
American legal system which relies on the adversarial process to resolve factual disputes.58 The Wright and Miller treatise cautions American jurists to not behave like
“French magistrate[s] and embark on a personal fact finding expedition, however deficient
the efforts of counsel may appear.”59
D.
Examples of Judicial Research into Adjudicative Facts
The Supreme Court appears to have conducted independent judicial research into an
adjudicative fact in the case of West v. Board of County Commissioners of Pawnee
County.60 The appeal arose from a wrongful death jury trial resulting in a damage award
less than $8,000. Appellant argued that the jury “ignored testimony key to determining the
appropriate damages award for his daughter’s wrongful death.”61 Appellant presented evidence at trial that the deceased would have been expected to earn $192,000 over a period
of years.
The opinion includes several scenarios of what the deceased could have earned
based on minimum wage calculations. The Court notes that it obtained the amount of minimum wage as of the decedent’s date of death and trial date from the website Infoplease.com and the website of the United States Department of Labor. 62 This information was used to calculate the deceased’s expected earnings at $107,120 and $150,800.
A review of the Court file revealed that these websites were not cited by the trial court or
either party to the appeal. The opinion held that the small size of the jury’s award demonstrated passion and prejudice and the case was remanded for a new trial on the issue of
damages.
The case provides an example of the Supreme Court conducting independent judicial
research into an adjudicative fact. The minimum wage amounts the Court obtained from
the websites pertain to the deceased’s expected earnings. The amount of expected earnings
was a disputed evidentiary fact at trial.
The Court’s research could be permissible under Rule 2.9 as it falls under the Rule’s
exception of not influencing “the judge’s opinion of the substantive merits [of] a specific
case.”63 The information obtained from the websites does not appear to have changed the
56. Thornburg, The Curious Appellate Judge: Ethical Limits on Independent Research, supra note 6, at 19293.
57. Id. at 160-61.
58. Id. at 138.
59. 21B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 5102.1 (2d
ed. 1990).
60. The appellate case file and record were reviewed. It is possible that these websites were cited by one of
the parties in oral argument.
61. West v. Bd. of Cnty. Comm’rs of Pawnee Cnty., 2011 OK 104, ¶ 13, 273 P.3d 31, 36.
62. Id. ¶ 20, 273 P.3d at 38.
63. OKLA. STAT. tit. 5 ch. 1, app. 4, Code of Jud. Conduct, Canon 2.9(C) (2015).
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outcome of the case. The appellate record contained evidence that the deceased could have
expected to earn $192,000 during her life. The Court’s hypothetical calculations based on
information obtained from the Internet were both below this amount. The appellate Court
did not award the appellant a specific amount of damages based on the minimum wage
amounts obtained from the websites. The case was remanded for a new trial on damages.
On remand both parties will have the opportunity to present evidence about expected earnings and make objections about earning calculations.
Alternatively, the Opinion explains that expert testimony regarding damages was
not presented at trial and was not required because “the element of damages lies within the
common knowledge of lay persons.” 64 In citing the Internet for the minimum wage
amounts, the opinion makes a fair assumption that the jury would have known the amount
of minimum wage on the date of trial. According to scholar Elizabeth Thornburg, certain
facts are “part of the judicial reasoning process [and] beyond the scope of the judicial
notice rule.”65 These facts include “basic cultural information” and are analogous to jurors
being allowed to evaluate evidence in light of “common knowledge.” 66 Thornburg’s understanding of judicial notice could exempt the Court’s Internet research into the amount
of minimum wage from the requirements of judicial notice and Rule 2.9.67
Independent judicial research into adjudicative facts appears in several Oklahoma
Supreme Court opinions issued before Rule 2.9 went into effect. 68 Limits on independent
judicial research found in the rules of evidence and the common law were applicable to
judicial research conducted before Rule 2.9’s enactment. Additionally, independent judicial factual research occurring before the rule’s effective date was governed by Canon 3
of Oklahoma’s Code of Judicial Conduct. Canon 3(B)(6) states that “[a] judge should not
initiate, nor consider ex parte communications.” 69 The Canon does not specifically mention independent judicial factual research. However, the Canon’s prohibition on ex parte
communication could be interpreted to prohibit independent judicial research. As scholar
Edward Cheng noted, “the tenor of the ethics rules seems to discourage [independent]
judicial research.”70
The Oklahoma Supreme Court conducted independent research into an adjudicative
fact in In re Estate of Speers.71 The case involved a will contest. One of the issues before
64. West, 2011 OK 104, ¶ 20, 273 P.3d 31, 38.
65. Thornburg, The Curious Appellate Judge: Ethical Limits on Independent Research, supra note 6, at 150.
66. Id., West, 2011 OK 104, ¶ 20, 273 P.3d 31, 38.
67. See Sanders v. State, 96 Okla. Crim. 397, 398, 256 P.2d 205, 209 (1953) (noting that if traffic conditions
at the airport were common knowledge within the territorial jurisdiction of the court, they could be judicially
noticed). See also WHINERY, supra note 27, at § 4.02.
68. Thirty-seven out of the eight-two opinions citing Internet resources were issued prior to the effective date
of Rule 2.9.
69. OKLA. STAT. tit. 5 ch. 1, app. 4, Code of Jud. Conduct, Canon 3(E)(b)(6) (2000). Oklahoma’s Code of
Judicial Conduct became effective November 1, 1997 and was superseded April 15, 2011 by OKLA. STAT. tit.
5 ch. 1, app. 4, Code of Jud. Conduct (2015). Prior versions of the Code of Judicial Conduct contained similar
provisions prohibiting ex parte communications.
70. Edward K. Cheng, Independent Judicial Research in the Daubert Age, 56 DUKE L.J. 1263, 1293 (2007).
The commentary to the 1990 ABA Model Code of Judicial Conduct specifically states that “A judge must not
independently investigate facts in a case and must consider only the evidence presented.” Oklahoma did not
incorporate this commentary into its Code of Judicial Conduct.
71. In re Estate of Speers, 2008 OK 16, ¶ 14, 179 P.3d 1265.
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the Court was whether there was sufficient evidence to support the trial court’s finding
that there were two subscribing witnesses to the will. One of the witnesses to the will in
question was deceased. 50 OKLA. STAT. tit. § 43 requires the death or absence of a subscribing witness to a will to be satisfactorily shown to the court when a will is contested.
The opinion notes that the only evidence in the appellate record of the witnesses’ absence
was oral testimony that the second witness to the will was deceased. The Supreme Court
found that “the trial court could not, as a matter of law, have made the requisite statutorily
required finding that [the witness’] death was satisfactorily shown” based only on the oral
testimony of the second witness. 72
In a footnote the opinion states, “[e]vidence of Walton’s death was readily available
to the appellee. A quick search of the Social Security Death Index shows that Walton died
on August 15, 2000 and that her last place of residence was Atoka, Oklahoma. http://
ssdi.rootsweb.com/cgi-bin/ssdi.cgi.”73 A review of the Court file revealed that neither
party to the appeal cited the SSDI website. The information found at the cited website was
adjudicative in nature and bears on the disputed evidentiary fact of whether the trial court
had sufficient evidence to make the required statutory finding of the death or absence of a
subscribing witness to the will.
The opinion’s conclusion that the trial court erred as a matter of law was not impacted by information obtained from the website. The Court’s reference to the website was
merely a suggestion that appellee could have satisfied the required statutory showing by
citing the website. The Court did not use the information obtained from the SSDI to change
the outcome of the appeal. The Court reversed the trial court’s decision and remanded the
case with instructions to not admit the will to probate.
Another example of independent judicial research into an adjudicative fact is found
in In re Initiative Petition No. 379, State Question 726.74 In this case the Supreme Court
invalidated an initiative petition for a number of reasons including illegal participation by
out of state petition circulators. Article 3 § 1 of the Oklahoma Constitution requires circulators of an initiative to be bona fide Oklahoma residents. The opinion notes that the proponent of the initiative petition took the approach that if circulators came into the state
with the intention of staying for the duration of the petition drive or could provide an address within the state, they were considered state residents. The opinion points out that this
position is not supported by Oklahoma law. The Court cites the proponent’s website to
demonstrate that it “represents itself as an organization armed with the essential elements
of a campaign including knowledge of local law.”75
The residency of circulators employed by the proponent was an adjudicative fact at
issue in the case. The Court cited the proponent’s website for statements about its
knowledge of local campaign law. These statements are adjudicative facts about a party to
the case. However, the opinion’s reference to the website was not essential to the opinion’s
conclusion.
72.
73.
74.
75.
Id. ¶ 14, 179 P.3d at 1271.
Id. ¶ 13 n. 18, 179 P.3d 1265, 1270 n. 18.
In re Initiative Petition No. 379, State Question No. 726, 2006 OK 89, 155 P.3d 32.
Id. ¶ 18, 155 P.3d at 41.
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These cases provide examples of the Oklahoma Supreme Court conducting independent research into adjudicative facts. The independent research conducted in these
cases does not appear to have altered the substantive outcome of any of these cases. This
distinguishes these opinions from the trial court judge in the Sanders v. State case who not
only conducted independent judicial research into an adjudicative fact by contacting the
airport control tower, but also used the information to change the outcome of the case
before him.76
These examples of the Oklahoma Supreme Court’s independent research into adjudicative facts are similar to the approach espoused by Judge Richard Posner of the United
States Court of Appeals for the Seventh Circuit. Judge Posner is a proponent of judges
conducting factual research on the Internet. He suggests that judicial clerks should
“Google the parties and do other online research to help them [and the judge] understand
the parties, the commercial or other context of the case, and the activities of the parties or
others that gave rise to the case.”77 Posner contends that judges should be conducting independent judicial research into background material, legislative facts, and “coloring-book
facts” which he describes as “facts designed to make a judicial opinion a little more vivid
and colorful than that which lawyers and judges are accustomed.” 78
Legal scholars argue that Posner’s “description of such background facts in some
cases falls better within the ambit of the traditional definition of adjudicative facts.” 79 In
an unpublished manuscript Judge Posner admits that in one opinion he conducted Internet
research that “could well be regarded as adjudicative facts. But the purpose of obtaining
and publishing them was not to sway or bolster the outcome; it was to provide a fuller
picture of the crime and the crime scene.” 80
In re Speers and In re Initiative Petition No. 379, State Question 726, the Oklahoma
Supreme Court followed Judge Posner’s advice to Google the parties. The information the
Court located and included in the opinions provided a fuller understanding of the parties
and the facts that gave rise to the cases. The independent judicial research appearing in
West v. Board of County Commissioners of Pawnee County resulted from a specific search
for the amount of the minimum wage at the time of trial. This research is similar to the
“background research” that Judge Posner contends law clerks should be doing to help a
judge understand the context of a case. 81
E.
Independent Judicial Legal Research
Judges have traditionally been permitted to research the legal issues arising in cases
before them and to cite and rely upon legal authority not cited by parties. 82 All Oklahoma
76. Sanders v. State, 96 Okla. Crim. 397, 398, 256 P.2d 205, 209 (1953).
77. Richard A. Posner, Judicial Opinions and Appellate Advocacy in Federal Courts - One Judge’s Views,
51 DUQ. L. REV. 3, 20 (2013).
78. Id. at 12.
79. Keele, supra note 4, at n. 56 (2014) and Frederick Schauer, The Decline of “The Record”: A Comment
on Posner, 51 DUQ. L. REV. 51, 57 (2013).
80. Thornburg, The Lure of the Internet and the Limits on Judicial Fact Research, supra note 5, at 47.
81. Posner, supra note 77, at 20.
82. This tradition differs from the practice in England. See Keele, supra note 4, at 170 citing Ruggero J.
Aldisert, The English Appellate Process: A Distant Second to our Own?, 75 JUDICATURE 48 (1991).
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appellate courts routinely discuss conducting independent legal research in judicial opinions.83 A wide variety of Internet based legal research resources were cited in the appellate
opinions examined in this study. Opinions cited online sources of a Native American tribal
code,84 state85 and federal86 administrative law materials, pending legislation,87 and law
review articles.88
In addition to a court’s common law prerogative to conduct independent legal research, the Oklahoma Evidence Code requires courts to take judicial notice of “the common law, constitutions and public statutes in force in every state, territory and jurisdiction
of the United States” and gives courts the option of taking judicial notice of “law of less
notoriety.”89 Nevertheless, the parties to an appeal are not relieved of the obligation to
support their arguments with legal authority. Oklahoma Supreme Court Rule 1.11(k) requires assignments of error to be supported by authority and the failure to do so generally
waives the asserted error.90
The ability to conduct independent legal research is necessary for Oklahoma courts
to perform their constitutional duty of administering justice without delay. 91 Courts should
utilize Internet legal research resources to perform this duty as efficiently as possible. The
Court of Civil Appeals opinion in BAC Home Loans Servicing, L.P. v. White provides an
illustrative example.92 In this case a homeowner objected to a foreclosure on the grounds
that the plaintiff was not the present holder of the mortgage. The mortgage contained a
clause designating Mortgage Electronic Registration Systems (hereinafter MERS) as the
mortgagee. The opinion notes this fact pattern “has generated much national controversy”
and cited several appellate court opinions from other states finding MERS lacked enforceable rights and did not own the promissory note secured by the mortgage. 93
83. Abla v. State ex rel. Alcoholic Beverage Control Bd., 1970 OK 8, 463 P.2d 968, 968
(“Independent legal research is often necessary and justified”), Parsons v. Childers, 1990 Okla. Crim. App. 16,
789 P.2d 243, 244 (“Our research indicates that our holding today is consistent with those jurisdictions which
have addressed the issue. Where the legislature has granted the state the authority to appeal, an appeal will lie.”),
In re Stratton ex rel. Kelley, 2004 Okla. Civ. App. 35, ¶ 7, 90 P.3d 566, 568 (“Our research reveals few Oklahoma
cases relevant to the facts and issue presented in this case.”).
84. Bittle v. Bahe, 2008 OK 10, 192 P.3d 810, 813 (citing an online version of the Absentee Shawnee Tribe
of Oklahoma’s tribal code).
85. L’ggrke v. Sherman, 2009 OK 80, ¶ 3, 223 P.3d 383, 384 (citing an online version of the Oklahoma State
Department of Corrections Policy Guidelines).
86. Howard v. Zimmer, Inc., 2013 OK 17, ¶ 5, 299 P.3d 463, 476 (citing the online docket of the Federal
Drug Administration) and Cline v. Oklahoma Coal. for Reprod. Justice, 2013 OK 93, 313 P.3d 253, 261 (citing
guidance from the FDA).
87. M.A.W. v. State, 2008 Okla. Crim. App. 16, ¶ 5, 185 P.3d 388, 390 (citing various Oklahoma legislative
bills available at the website of the Oklahoma legislature).
88. BAC Home Loans Servicing, L.P. v. White, 2011 Okla. Civ. App. 35, ¶ 8, 256 P.3d 1014, 1017 (citing
the Social Science Research Network for the online version of a law review article).
89. OKLA. STAT. tit. 12, § 2201 (2015).
90. OKLA. Ct. R. 1.11(k) (2015).
91. OKLA. CONST. art. 2 § 6.
92. BAC Home Loans Servicing, L.P., 2011 Okla. Civ. App. 35, 256 P.3d at 1014.
93. BAC Home Loans Servicing, L.P., 2011 Okla. Civ. App. 35, ¶ 8, 256 P.3d at 1017, citing Landmark Nat’l
Bank v. Kesler, 289 Kan. 528, 216 P.3d 158 (2009); Mortgage Electronic Registration System v. Southwest
Homes of Arkansas, 2009 Ark. 152, 301 S.W.3d 1; Bellistri v. Ocwen Loan Servicing, LLC, 284 S.W.3d 619
(Mo.Ct.App. 2009); and Mortgage Electronic Registration Systems, Inc. v. Saunders, 2 A.3d 289 (Me. 2010).
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The court cited a forthcoming law review article appearing on the Social Science
Research Network to explain the operation of MERS. 94 This article and cases from other
jurisdictions were used to support the opinion’s holding that “in Oklahoma it is not possible to bifurcate the security interest from the note. An assignment of the mortgage to one
other than the holder of the note is of no effect.” 95
Law review articles delving into contemporary legal issues can be useful to judges.96
Unfortunately, the traditional law review publication process is extremely slow. 97 In recent years many legal scholars have adopted the practice of uploading forthcoming articles
to websites and institutional repositories to quickly disseminate their ideas to judges and
other legal decision makers. Judges can ensure their research includes the most current
legal scholarship by accessing forthcoming articles using these websites.
F.
Independent Judicial Research into Areas of Expert and Scientific Knowledge
Oklahoma appellate courts are permitted to conduct independent research in matters
involving expert or scientific knowledge. The Oklahoma Evidence Code requires that expert testimony be the “product of reliable principles and methods.” 98 In Taylor v. State99
the Court of Criminal Appeals explained that trial court judges must act as gatekeepers to
ensure that scientific evidence is reliable. The opinion indicated that a trial court should
consider whether a scientific technique has been subjected to peer review and publication
and whether a theory has gained general acceptance in the scientific community. 100
In Davenport v. State, the Court of Criminal Appeals explained that appellate courts
are similarly obligated to perform this gatekeeping function. The reliability of expert witness testimony regarding a particular syndrome was at issue in Davenport v. State. 101 The
trial court conducted a hearing to determine the reliability of the syndrome but no record
was made of the hearing.102 The Court of Criminal Appeals conducted its own research
into the reliability of the syndrome noting, “[t]his Court has the right to make an independ-
94. Christopher L. Peterson, Two Faces: Demystifying the Mortgage Electronic Registration System’s Land
Title Theory, 53 WM. & MARY L. REV. 111 (2011) (available at http://ssrn. com/abstract=1684729).
95. BAC Home Loans Servicing, L.P., 2011 OK CIV APP 35, ¶ 10, 256 P.3d at 1017.
96. But see CHIEF JUSTICE OF THE UNITED STATES JOHN G. ROBERTS, JR., INTERVIEW AT FOURTH CIRCUIT
COURT OF APPEALS ANNUAL CONFERENCE, available at www.c-span.org/video/?300203-1/conversation-chiefjustice-roberts [http://perma.cc/YL35-M4Z] at approx. 30:40 (June 25, 2011) (“Pick up a copy of any law review
that you see and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote
it, but isn’t of much help to the bar.”). See also Orin S. Kerr, The Influence of Immanuel Kant on Evidentiary
Approaches in 18th-Century Bulgaria, 18 GREEN BAG 2D 251 (2015).
97. Adam Liptak, When Rendering Decisions, Judges Are Finding Law Reviews Irrelevant, N.Y. TIMES, Mar.
19, 2007 (the slow publication process of law reviews “feel[s] as ancient as telegrams, but slower”); Peoples,
Citation of Blogs, supra note 12 at 80.
98. OKLA. STAT. tit 12 § 2702 (2015).
99. Taylor v. State, 1995 Okla. Crim. App. 10, 889 P.2d 319, 329-30.
100. Id.
101. Davenport v. State, 1991 Okla. Crim. App. 14, 806 P.2d 655, 658.
102. Id. The Court of Criminal Appeals admonished the bench and bar to make records of similar hearings in
the future.
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ent search of appropriate medical and legal doctrines to determine if the syndrome is generally accepted and meets the proper test. From our research, we find that it is a generally
accepted doctrine.”103
Oklahoma appellate courts are permitted to conduct independent judicial research
into scientific facts in the context of judicial notice. Section 2202(B)(2) of the Evidence
Code permits judicial notice of scientific facts without expert testimony when the facts at
issue are “capable of accurate and ready determination by resort to sources whose accuracy
cannot reasonably be questioned.”104 In the pre-Internet era Oklahoma appellate courts
have cited medical dictionaries and scientific journals to support taking judicial notice of
scientific facts under Section 2202.105
Several cases examined in this study provide examples of Oklahoma appellate courts
conducting independent research on the Internet into matters of scientific knowledge. In
Parris v. Limes, the Court of Civil Appeals conducted independent research into medical
literature to clarify a statement made in a pathologist’s affidavit. 106 The opinion cited an
article appearing in the Archives of Pathology & Laboratory Medicine to support the proposition that it is common knowledge that unnecessary removal of a healthy prostate does
not ordinarily occur absent negligence. 107
G.
Dictionary Research
The use of dictionaries by appellate courts has generated a good deal of discussion
among legal scholars.108 Oklahoma appellate courts have cited online dictionaries to define terms at issue in cases before them. When terms are not defined by a statute, Oklahoma
appellate courts are to give the terms the “meaning as attributed to them in ordinary and
103. Davenport, 1991 Okla. Crim. App. 14, 806 P.2d 655, 658.
104. WHINERY, supra note 27, at § 6.11.
105. Id. (citing Smith v. State, 32 Okla. Crim. App. 247, 240 P. 656 (1925) (taking notice of a legislative
definition of narcotic drugs); Jefferson v. State, 34 Okla. Crim. App. 56, 244 P. 460 (1926) (taking notice of the
definition of heroin from DORLAND’S MEDICAL DICTIONARY); and cases taking notice of the reliability of blood,
urine, and breathalyzer tests based on articles appearing in scientific literature. Allen v. State, 585 P.2d 1390
(Okla. Crim. App. 1978), Toms v. State, 95 Okla. Crim. App. 60, 239 P.2d 812 (1952), Penny v. State, 410 P.2d
553 (Okla. Crim. App. 1966), and Edwards v. State, 544 P.2d 60 (Okl.Cr.1975).
106. Parris v. Limes, 2009 Okla. Civ. App. 19, ¶ 17, 284 P.3d 1128, 1134.
107. Archives of Pathology & Laboratory Medicine, June 2006; 130:811–816 (available at http://findarticles.com/p/articles/mi_qa3725/is_200606/ai_n 17189011 [http://perma.cc/L5J8-TJXF]. The court did not expressly state that it was taking judicial notice of this fact. See note 174 infra.
108. See Samuel A. Thumma; and Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United
States Supreme Court’s Use of Dictionaries, 47 BUFF. L. REV. 227, 290 (1999)(critiquing the United States Supreme Court for not establishing guidelines regarding the use of dictionaries); Jeffrey L. Kirchmeier & Samuel
A. Thumma, Scaling the Lexicon Fortress: The United States Supreme Court’s Use of Dictionaries in the TwentyFirst Century, 94 MARQ. L. REV. 77, 78 (2010) (providing a comprehensive compilation of the use of dictionaries
since the Court began); Fritz Snyder, Legislative History and Statutory Interpretation: The Supreme Court and
the Tenth Circuit, 49 OKLA. L. REV. 573, 599 (1996) (discussing the United States Court of Appeals for the Tenth
Circuit’s use of dictionaries).
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usual parlance.”109 Oklahoma appellate courts have cited legal and other dictionaries numerous times in the performance of this function.110 Online dictionaries are cited in appellate opinions to define a variety of terms including the VAS pain scale, 111 “employ,”112
“voluntary,”113 “cave,”114and “behalf.”115 The use of print and online dictionaries to determine a term’s ordinary meaning is similar to a court conducting legal research.
In Tucker v. New Dominion, the Oklahoma Supreme Court cited print and electronic
sources to define and determine the pronunciation of the name Hrdy.116 The case presented
the question of whether the misspelling of the name Olinka Hrdy as Olinka Hardy in notices filed with the Oklahoma Corporation Commission rendered an order invalid for violating the due process rights of Ms. Hrdy.117 In deciding the case, the Oklahoma Supreme
Court employed the doctrine of idem sonans. The doctrine prevents “a variant spelling of
a name in a document from voiding the document if the misspelling is pronounced the
same way as the true spelling.”118
In applying the doctrine to the case, the Court cited print dictionaries and the website
Inogolo.com for the pronunciation of Hrdy in the Czech language. 119 The Court found that
Hrdy and Hardy sounded “sufficiently similar to be idem sonans.”120 None of the cited
sources appeared in the appellate record. The Court’s use of print and online dictionaries
was required to apply idem sonans and is similar to the use of dictionaries to determine
the ordinary usage of terms in numerous other cases.121 The Court did not take judicial
notice of the print or online dictionaries, but instead took judicial notice of the sound of
Hrdy as a fact within the common knowledge or capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.122 The Court
held that Hrdy’s successors in interest were bound by the order of the Corporation Com-
109. Riffe Petroleum Co. v. Great Nat. Corp., Inc., 1980 OK 112, 614 P.2d 576.
110. A search of the WestlawNext database for the terms “dictionary & define” returned 1,163 results in a
database of Oklahoma appellate cases.
111. AmeriResource Group v. Gibson, 2008 OK 33, ¶ 11, 183 P.3d 1006, 1010.
112. Am. Airlines, Inc. v. State, ex rel. Oklahoma Tax Comm’n, 2014 OK 95, ¶ 46, 341 P.3d 56, 68.
113. Scott v. Oklahoma Secondary Sch. Activities Ass’n, 2013 OK 84, ¶ 21, 313 P.3d 891, 897.
114. Broom v. Wilson Paving & Excavating, Inc., 2015 OK 19, ¶ 8, 356 P.3d 617, 636.
115. B. of Cnty. Comm’rs of Delaware Cnty. v. Ass’n of Cnty. Comm’rs of Oklahoma Self-Ins. Grp., 2014
OK 87, ¶ 12, 339 P.3d 866, 869.
116. Tucker v. New Dominion, L.L.C., 2010 OK 14, 230 P.3d 882.
117. Olinka Hrdy was Oklahoma’s first modern artist. She collaborated with Frank Lloyd Wright and painted
art deco murals for the architecturally significant Riverside Studios in Tulsa, Oklahoma. The case is of particular
interest to the author who supported Oklahoma City University School of Law Library Professor Jennifer Prilliman in her efforts to restore and preserve of two of Hrdy’s murals discovered during the renovations of Oklahoma
City University School of Law’s building at 800 North Harvey Avenue in Oklahoma City. The murals represent
two thirds of known extant Hrdy murals. See OKLAHOMA CITY UNIVERSITY SCHOOL OF LAW: GROWING
FORWARD, BOB BURKE AND LEE PEOPLES (Forthcoming 2016, copy on file with author).
118. BLACK’S LAW DICTIONARY 862 (Tenth Edition).
119. Hrdy, INOGOLO, http://inogolo.com/pronunciation/Hrdy [http://perma.cc/E9MT-949B].
120. Tucker, 2010 OK 14, ¶ 16, 230 P.3d 882, 887.
121. See cases discussed under the section “Dictionary Research” supra.
122. Tucker, 2010 OK 14, 230 P.3d 882. This case is an exception to the general rule that appellate courts do
not take judicial notice of adjudicative facts.
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mission notwithstanding the misspelling of her name. The Tucker case is significant because it creates an exception to the general rule that appellate courts are prohibited from
taking judicial notice of adjudicative facts.
The Oklahoma Supreme Court cited Merriam-Webster’s online Medical Dictionary
in the case of AmeriResource Group v. Gibson.123 The opinion cited the dictionary for the
definition of the VAS scale commonly used for pain evaluation. The online medical dictionary was not cited in the context of judicial notice or the Court’s gatekeeping function.
The VAS scale was not at issue in the case. The Court’s independent citation of the online
medical dictionary for a technical term makes the opinion more easily understandable and
is in line with the approach of Judge Posner who adds independent judicial research to his
opinions to make them more readable.124
In Wilder v. Oklahoma Tax Commission, the Court of Civil Appeals considered a
taxpayer’s appeal of an order of the tax commission disallowing the use of a tax credit for
a low speed electric vehicle (LSV). 125 The statutory language of the tax credit at issue
specifically excluded “golf carts.” During administrative proceedings, the tax commission
determined the LSV was a golf cart based on Internet research and other evidence. The
Court of Civil Appeals opinion notes that the term golf cart is not defined in Oklahoma
statutes or “most dictionaries printed within the last twenty years.” 126 The opinion cites
several online sources to define golf cart including Merriam Webster’s online dictionary,
golflink.com, dictionary.com, thefreedictionary.com, and others. 127 It is unclear from the
language of the opinion and the appellate record whether the court conducted this research
independently or relied upon extensive research conducted by the policy division of the
Oklahoma Tax Commission.
The Court of Criminal Appeals cited Wikipedia to define the slang expression
“drinking the Kool-Aid” in the case of Pryor v. State.128 The opinion reversed a criminal
conviction based on inflammatory emotional appeals made by the prosecutor during clos-
123. AmeriResource Group v. Gibson, 2008 OK 33, ¶ 11, 183 P.3d 1006, 1010. The Court did not expressly
state that it was taking judicial notice of the definition.
124. Posner, supra note 77, at 11.
125. Wilder v. Oklahoma Tax Comm’n, 2012 Okla. Civ. App. 91.
126. Id. at ¶ 29. Interestingly a search of statutes from various other states revealed that Kansas and South
Dakota statutorily define the term “golf cart.” See KAN. STAT ANN. § 8-1495 (2015) and S.D. CODIFIED LAWS §
32-14-13 (2015). There is historical precedent for Oklahoma borrowing statutory language from both jurisdictions. See ORBEN J. CASEY, AND JUSTICE FOR ALL: THE LEGAL PROFESSION IN OKLAHOMA, 1821-1989 66
(1989). A search of print dictionaries returned definitions for the term “golf cart.” See MERRIAM WEBSTER’S
COLLEGIATE DICTIONARY 538 (11th Ed) “a motorized cart for carrying golfers and their equipment over a golf
course.” THE NEW OXFORD AMERICAN DICTIONARY 727 (2nd Ed) “a small motorized vehicle for golfers and
their equipment.”
127. See
Golf
Cart,
MERRIAM-WEBSTER,
http://www.merriam-webster.com/dictionary/golfcart
[http://perma.cc/KW7M-YXPT];
DICTIONARY.COM,
http://dictionary.reference.com/browse/golf+cart
[http://perma.cc/8QLC-R3QH]; THE FREE DICTIONARY, http://www.thefree dictionary.com/golf+cart
[http://perma.cc/4GUC-LVF8],
The
History
of
Golf
Carts,
GOLFLINK
http://www.golflink.com/facts_18499_history-golf-carts.html [http://perma.cc/E7QN-TH9Z]; A History of Golf
Carts, GOLF GUIDE TODAY, http://golfguidetoday.info/?p=305; “Golf Carts,” http://topics, info.com/GolfCarts_1582
[http://perma.cc/88GS-9X9K];
Low
Speed
Vehicles,
GSA,
http://www.gsa.gov
[http://perma.cc/FXH8-T2DN].
128. Pryor v. State, 2011 OK CR 18, ¶ 6 254 P.3d 721, 723.
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ing arguments. One such statement was “if you’ve been drinking the Kool-Aid you’ll probably walk her.”129 Wikipedia is an online encyclopedia that can be edited by anyone. A
study conducted in 2010 found that over 400 federal courts had cited Wikipedia and some
had taken judicial notice of Wikipedia content or decided motions based on Wikipedia
entries.130 Wikipedia entries can be “opportunistically edited” by a client or lawyer to
create or edit content supporting a particular position at issue in a case. 131
Oklahoma Appellate Courts have been restrained in their citation to Wikipedia. The
citation in Pryor v. State appears to be the only citation in any Oklahoma judicial opinion
to Wikipedia. Wikipedia is frequently updated and is a good source for definitions of slang
terms and references to popular culture that may not appear in print dictionaries until their
use is well-established. 132 Wikipedia has been cited by other state appellate courts and
federal district courts for definitions of slang terms. 133
H.
Expanding Independent Judicial Research
The version of Model Rule 2.9 adopted by Oklahoma is one of the most permissive
in the nation.134 Oklahoma added specific language to the ABA Model Rule allowing
judges to “seek information of a general nature that does not bear on a disputed evidentiary
fact or influence the judge’s opinion of the substantive merits [of] a specific case.”135 The
rule also allows judges to “obtain general information about a specialized area of
knowledge that does not include the application of such information in a specific case.”136
The discussion of independent judicial research above demonstrates that Oklahoma
appellate courts have taken a conservative approach towards independent research into
adjudicative facts. This approach is prudent and should become the normative practice of
the appellate judiciary. An expansive application of Rule 2.9 could violate a litigant’s due
process rights, Sixth or Seventh Amendment jury trial rights, and contravene the adversarial traditions of the American legal system. 137
Legal scholars contemplate judges taking a more expansive role in conducting independent research into adjudicative facts. Elizabeth Thornburg contends that Rule 2.9(C)’s
reference to judicial notice opens a loophole allowing judges to independently investigate
129. Id.
130. Peoples, Citation of Wikipedia, supra note 12, at 36.
131. R. Jason Richards, Courting Wikipedia, TRIAL, Apr. 2008, at 63. See KAREN ELTIS, COURTS, LITIGANTS
AND THE DIGITAL AGE: LAW, ETHICS AND PRACTICE 31, 39 (2012) for an example of “ill-intentioned individuals
calculatingly planted inaccuracies and dis-information on Wikipedia, with the intent to mislead and influence a
particular outcome in a dispute.”
132. Peoples, Citation of Wikipedia, supra note 12, at 31.
133. See People v. Hawlish, No. G036077, 2007 WL 915149, at 6 n.5 (Cal. Ct. App. Mar. 27, 2007) (citing
Wikipedia for the definition of “tweaking”); Riches v. Pitt, No. 07-14615, 2007 WL 4547844, at 8 n.2 (E.D.
Mich. Dec. 19, 2007) (citing Wikipedia for the definition of “phreakers”); and, Bragg v. Linden Research, Inc.,
487 F. Supp. 2d 593 (E.D. Pa. 2007) (citing Wikipedia for the definition of “avatar”).
134. Keele, supra note 4, at 128. The version of Rule 2.9 adopted in Connecticut only limits judges serving as
factfinders from conducting independent research.
135. OKLA. STAT. TIT. 5 CH. 1, APP. 4, Code of Jud. Conduct, Canon 2, Rule 2.9(C) (2015).
136. Id.
137. Thornburg, The Curious Appellate Judge: Ethical Limits on Independent Research, supra note 6, at 138,
160-161, 192-93.
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adjudicative facts as long as the facts meet the judicial notice requirement of being “generally known or ‘capable of accurate and ready determination by resort to sources whose
accuracy cannot be reasonably questioned.’”138
The Oklahoma Supreme Court independently conducted Internet research of an adjudicative fact and took judicial notice of that fact in Tucker v. New Dominion as discussed
above.139 Technically, the Court did not take judicial notice of an Internet resource but
instead noticed the fact that the pronunciation of Hrdy and Hardy are idem sonans. The
Court’s Internet research and judicial notice of an adjudicative fact in Tucker was required
to apply the doctrine of idem sonans and is comparable to the use of dictionaries to define
terms in other cases.
Expanding the application of this “loophole” could be problematic. As explained
below in the section on link rot, websites often become inaccessible for a variety of reasons. An Internet resource that is inaccessible would not meet the judicial notice standard
of being “capable of accurate and ready determination.” 140 Similarly, website content that
changes because of reference rot could not meet the judicial notice standard of a source
“whose accuracy cannot be reasonably questioned.” 141 Additionally, the widespread application of this “loophole” would contravene the existing practice of Oklahoma appellate
courts refusing to take judicial notice of facts “which are not part of the record on appeal
or were not before the trial court when its decision was made.” 142
Courts in other jurisdictions have adopted a more lax approach to the requirements
of facts being “generally known or capable of accurate and ready determination by resort
to sources whose accuracy cannot be reasonably questioned.” 143 A recent law review article on the subject notes “courts are not just using the Internet to confirm intuitions of
which they were already planning to take judicial notice—presumably, generally-known
facts—but they are also turning to sources on the Internet to take judicial notice more
often.”144
A basic procedural safeguard should be used if Oklahoma appellate courts adopt a
more expansive approach to researching and using adjudicative facts from the Internet.
Rule 2.9 should be amended to require judges to disclose their independent research of
adjudicative facts and provide the parties with an opportunity to object or provide supplemental information.145 Amending the rule to include a notice and comment provision
could help alleviate concerns over violating parties’ rights of due process, Sixth or Seventh
Amendment jury trial rights, and the traditions of the American legal system.
138. Id. at 136 (quoting Fed. R. Evid. 201(b)).
139. Tucker v. New Dominion, L.L.C., 2010 OK 14, ¶ 15, 230 P.3d 882, 886.
140. OKLA. STAT. TIT. 12 § 2202(b)(2) (2015).
141. Id.
142. ROLLS ET AL., supra note 52.
143. OKLA. STAT tit. 12 § 2202 (b)(2) (2015); see Keele, supra note 4, at 157.
144. Keele, supra note 4, at 157.
145. A similar approach has been advocated by Thornburg, The Curious Appellate Judge: Ethical Limits on
Independent Research, supra note 6, at 191 (explaining specific changes to evidentiary rules that may be required
in the event that Rule 2.9(C) is modified to provide notice to parties when judges conduct independent research).
A similar approach is also advanced in Keele, supra note 4, at 168.
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An illustrative example of providing parties notice and a chance to comment on independent judicial research into adjudicative facts comes from the Eastern District of New
York. In this case a federal trial court conducted independent research into adjudicative
facts in an unfair competition case.146 The trial judge issued a preliminary memorandum
inviting the parties to be heard on the “propriety of taking judicial notice and the tenor of
the matter noticed.”147 In a published opinion reviewing the practice, Chief Judge Weinstein found the procedure complied with the spirit of the Federal Rules of Evidence on
judicial notice and had “the advantage of reducing the possibility of egregious errors by
the court and increases the probability that the parties may believe they were fairly treated,
even if some of them are dissatisfied with the result.” 148 Although this case did not involve
Internet research, it provides an example of the success of providing parties with notice
and an opportunity to comment on independent judicial research into adjudicative facts.
The discussion above centered on whether Oklahoma appellate courts can conduct
independent factual research using the Internet. So far, Oklahoma appellate courts have
been restrained in conducting independent factual research on the Internet. The remainder
of the article will examine the question of whether Oklahoma appellate courts should conduct this research. The impermanent nature of the Internet warrants caution when Internet
resources are cited in judicial opinions. The next section will explore the perils of citing
Internet resources in judicial opinions. The citation of Internet resources in appellate briefs
will also be examined. Further, a course of action to mitigate the harm caused when these
links fail will be described.
III. THE TRANSIENT NATURE OF THE INTERNET
Internet citations first appeared in legal materials in the late 1990s.149 A high percentage of these citations no longer work. No one can “predict what links will rot, even
within individual Supreme Court cases. The Internet’s ephemeral nature means websites
can be available today – and gone tomorrow.”150
Link and reference rot are to blame for the disappearance of cited Internet resources.
As discussed above, link rot refers to a link that no longer displays anything. A rotten link
typically retrieves a “404 not found” error page.151 Reference rot describes a link that “still
works but the information referenced by the citation is no longer present, or has
changed.”152
Link and reference rot occur for a number of reasons. Links, otherwise known as
URLs, are references to content maintained by others, many with no interest in ensuring
that links continue to function indefinitely.153 URLs fail when websites are reorganized
146. Bulova Watch Co. v. K. Hattori & Co., 508 F. Supp. 1322 (E.D.N.Y. 1981).
147. Id. at 1328.
148. Id. at 1328-29.
149. See Peoples, Internet Citations in Okla. Att'y Gen. Opinions, supra note 7, at 348.
150. Liebler & Liebert, supra note 8, at 277.
151. Jonathan Zittrain et al., Perma: Scoping and Addressing the Problem of Link and Reference Rot in Legal
Citations, 127 HARV. L. REV. F. 165, 170 (2014) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2329161.
152. Id. at 166.
153. Id. at 165.
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and URL addresses change.154 Link rot can occur when a website owner forgets to renew
a domain registration, deletes content from a site, or simply loses interest in maintaining a
website.155 Reference rot can occur when a website owner makes minor changes to content
or makes updates to provide more current information. 156
A.
Study Methodology and Results
Judicial opinions citing Internet resources were located by searching the
WestlawNext database Oklahoma State Cases.157 The search query used to locate opinions
citing Internet resources was ADV: WWW HTTPS HTTP WEBSITE INTERNET “WEB
PAGE[.]”
This search returned a total of 183 opinions. 158 Opinions that merely contained a
search term but did not cite an Internet resource for factual information or to support the
logic or reasoning of the opinion were removed from the dataset. After culling the dataset,
a total of eighty-two opinions citing an Internet resource for factual information or to support the logic or reasoning of the opinion remained. 159
The first citation to an Internet resource in an Oklahoma appellate judicial opinion
appeared in 1998.160 The eighty-two opinions citing Internet resources over the past seventeen years comprise 2.5% of all appellate opinions published during the time period as
depicted below in Figure 1. Oklahoma appellate opinions cite Internet resources less frequently than opinions of the Supreme Court of the United States (SCOTUS). Internet resources were cited in 14% of the SCOTUS opinions issued from 1996 – 2001.161 Oklahoma appellate courts cite Internet resources at a slightly greater frequency than appellate
courts in other states. The citation rate of Internet resources in appellate opinions ranged
from 1.58% to 0.001% in studies examining opinions from Texas, Washington, Kentucky,
and New York.162
154. Peoples, Internet Citations in Okla. Att'y Gen. Opinions, supra note 7, at 348.
155. Id.
156. Zittrain et al., supra note 151.
157. The language of this section and methodology used to locate opinions and the discussion in this section
was adapted from Peoples, Internet Citations in Okla. Att'y Gen. Opinions, supra note 7. The WestlawNext
Oklahoma State Cases database includes the following: Supreme Court of the Territory of Oklahoma: 1890 –
1907; Court of Appeals of Indian Territory: 1895 – 1907; Supreme Court: begins with 1907; Court of Criminal
Appeals: begins with 1908; Court of Civil Appeals: begins with 1967; and, Court of the Judiciary: begins with
1968.
158. Search results as of May 26, 2015.
159. Id.
160. Mills v. Grotheer, 1998 OK 33, 957 P.2d 540.
161. Liebler & Liebert, supra note 8, at 297.
162. Arturo Torres, Is Link Rot Destroying Stare Decisis As We Know It? The Internet-Citation Practice of
the Texas Appellate Courts, 13 J. APP. PRAC. & PROCESS 269, 276-277 (2012) (finding a 1.58% citation rate to
Internet resources in Texas appellate opinions between the years of 1998-2011); Tina S. Ching, The Next Generation of Legal Citations: A Survey of Internet Citations in the Opinions of the Washington Supreme Court and
Washington Appellate Courts, 1999-2005, 9 J. APP. PRAC. & PROCESS 387, 391 (2007) (finding a 0.6% citation
rate to Internet resources in Washington appellate opinions between the years of 1999-2005); Michael Whiteman
& Jennifer Frazier, Internet Citations in Appellate Court Opinions: Something’s Rotting in the Commonwealth,
76 KY. BENCH & BAR 22, 22 (Jan. 2012) (finding a 0.006% citation rate to Internet resources in Kentucky appellate opinions between the years of 2000-2011); Kelly C. Aldrich, Web Cites: When Courts Cite to URLs: A
Study of Washington and New York Cases, 27 LEG. REF. SERV. Q. 203 (2008) (finding a 0.001% citation rate to
Internet resources in New York appellate opinions between 1998-2006). Additional research was conducted to
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Figure 1
Citations to Internet Resources in Oklahoma Appellate Judicial Opinions
Year
Total Opinions
Citing Internet
Number of Supreme Court
Opinions Issued
Supreme Court Opinions
Citing Internet
% of Opinions
Citing Internet
Number of Court of Criminal
Appeals Opinions Issued
Court of Criminal Appeals
Opinions Citing Internet
% of Opinions
Citing Internet
Number of Court of Civil
Appeals Opinions Issued
Court of Civil Appeals
Opinions Citing Internet
% of Opinions
Citing Internet
1998
1
133
1
1%
77
0
0%
196
0
0%
2003
1
107
1
1%
26
0
0%
108
0
0%
2004
2
106
1
1%
37
0
0%
104
1
1%
2005
1
92
1
1%
31
0
0%
112
0
0%
2006
5
99
2
2%
50
1
2%
155
2
1%
2008
6
105
4
4%
30
2
7%
115
0
0%
2009
11
97
6
6%
32
2
6%
107
3
3%
2010
8
92
5
5%
28
1
4%
145
2
1%
2011
8
105
3
3%
31
2
6%
128
3
2%
2012
10
113
5
4%
16
2
13%
112
3
3%
20
2
10%
113
2
2%
2013
12
109
8
7%
2014
11
118
7
6%
17
2
12%
109
2
2%
2015163
6
35
4
11%
8
0
0%
60
2
3%
Total
82
1311
48
4%
403
14
3%
1564
20
1%
The total number of links found in all opinions was 105.164 Sixty-six Internet resources were cited for factual information. Thirty-nine Internet resources were cited to
support the logic or legal reasoning of the opinion.
Each link was checked to verify that it still worked. The content displayed at
webpages was checked to determine if it suffered from reference rot (not containing the
information it was cited for). Advanced Internet search techniques were used to try and
locate cited webpages that were inaccessible due to link rot (not displaying any content).
determine the total number of cases issued by the appellate courts of these states to arrive at the percentages
stated. It is likely the percentage of opinions citing Internet resources in these states has increased in the years
since these studies were conducted.
163. As of May 26, 2015.
164. Several of the eighty-two opinions citing Internet resources cited multiple Internet resources.
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Initial results revealed that fifty out of the 105 links cited in opinions did not work.
This high failure rate can be explained because of the way WestlawNext formats links.
WestlawNext occasionally inserts extra spaces into links causing them to fail when cut
and pasted into an Internet browser. For example, Crownover v. Keel cites the United
States Postal Service website for what a certified mail receipt verifies. 165 The link is displayed as follows in WestlawNext, note the additional space after the “://” symbols:
https:// store.usps.com/store/browse/productDetailSingleSku.jsp?productId=P_FORM_ 3800 .
Out of the fifty links that initially failed, eighteen could be made to work by removing extra spaces inserted by WestlawNext. WestlawNext’s practice of inserting extra
spaces into links may be obvious to an Internet savvy researcher; but, an average or unsophisticated researcher may give up after retrieving an error message. 166
The actual failure rate of links in appellate opinions was determined to be 30%
(thirty-two out of 105 links did not work) after correcting for link failures caused by
WestlawNext’s insertion of spaces. This failure rate is lower than the rate found in most
other studies of judicial opinions: Kentucky Appellate Courts (47% failure rate); Texas
Appellate Courts (39% failure rate); Washington State (40% failure rate among published
judicial opinions).167 The failure rate of links in Oklahoma appellate opinions is slightly
higher than the failure rate of links in U.S. Supreme Court opinions (29% percent failure
rate) and published judicial opinions in New York State (27%).168
Seventeen years of data demonstrate that older links fail at a higher rate than younger
links. Links in opinions from 1998-2005 have a failure rate of 50%, links in opinions from
2006-2010 have a failure rate of 37%, and links in opinions from 2011-2015 have a failure
rate of 27%. These results are similar to studies finding that links in Oklahoma attorney
general’s opinions, judicial opinions from other jurisdictions, and law review articles are
more likely to fail as they age. 169
165. 2015 OK 35, ¶ 5 n. 2, 357 P.3d 470, 480 n. 2 (Winchester, J., dissent).
166. See the studies discussed infra about the lack of basic Internet research skills among members of the
general public, law students, and lawyers.
167. Whiteman and Frazier, supra note 162, at 22; Torres, supra note 162, at 281; Aldrich, supra note 162, at
227.
168. Liebler & Liebert, supra note 8, at 26. But see Zittrain et al., supra note 151, at 175 (noting a 49% reference rot rate in links found in U.S. Supreme Court opinions); Aldrich, supra note 162, at 227.
169. Peoples, Internet Citations in Okla. Att'y Gen. Opinions, supra note 7, at 353; see Torres, supra note 162,
at 282 (“As a whole, the data show an upward trajectory of link rot with the passage of time.”); see Zittrain et
al., supra note 151, at 167 (citing an early study conducted by Mary Rumsey finding a “steady decrease in working links” in law review articles). But see Liebler & Liebert, supra note 8, at 298-99 (“Based on statistical tests,
we found no clear relationship between the time elapsed since a link was cited and whether the link still works.”).
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Figure 2
Failure Rate of Links in Appellate Judicial Opinions (1998 - 2015)
Year
Number of
Links in
Opinions
Number of
Failed
Links170
Failure
Rate
1998
2003
2004
2005
2006
2008
2009
2010
2011
2012
2013
2014
2015171
1
1
2
1
5
6
11
8
8
10
12
11
6
1
0
0
1
2
3
5
1
4
3
2
4
0
100%
0%
0%
100%
40%
50%
45%
13%
50%
30%
17%
36%
0%
TOTAL
82
26
37%
B.
Multi-Year
Averages
50%
37%
27%
Link Rot in Appellate Judicial Opinions
Twenty-nine of the thirty-two links that did not function could be made to work by
conducting additional searching. The technical ability required to locate the missing information ranges from novice to expert level.
Basic Internet searches can be used to discover some sources cited with a rotten link
in judicial opinions. In Parris v. Limes, discussed supra, the opinion of the court cited an
article from the Archives of Pathology and Laboratory Medicine. 172 The Parris opinion
cited the article to clarify an expert witnesses’ statement. The article supported part of the
opinion’s reasoning that it is common knowledge that unnecessary removal of a healthy
prostate does not ordinarily occur absent negligence. 173 The link provided in the opinion
does not return the cited article but instead pulls up a search engine page for
170. Links that failed due to WestlawNext inserting extra spaces were not included.
171. Through May 26, 2015.
172. 2009 Okla. Civ. App. 19, ¶ 14 n. 5, 284 P.3d 1128, 1134 n. 5.
173. Id. (citing Archives of Pathology & Laboratory Medicine, June 2006; 130:811–816 (available at
http://findarticles.com/p/articles/mi_qa3725/is_200606/ai_n 17189011)). The court did not expressly state that it
was taking judicial notice of this fact.
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“Search.com.”174 A Google search for the title of the article returns a copy from the journal’s website.175
The opinion in Bittle v. Bahe cites a website for the tribal ordinances of the Absentee
Shawnee Tribe.176 The link provided in the opinion retrieves a webpage under construction that includes some information in French but not the cited tribal ordinance. 177 A
Google search for “Absentee Shawnee Tribal Ordinance” does not immediately return the
tribal code cited in the Court’s opinion. A researcher with some legal research experience
might try searching for the “tribal code” instead of the term “tribal ordinance” used in the
opinion. A search for “Absentee Shawnee Tribal Code” returns several sources of the cited
provision including the Tribe’s website, the National Indian Law Library website, and the
University of Oklahoma College of Law Tribal Code Project website. 178
The Bittle opinion does not include the text of the tribal code at issue. Instead it
paraphrases the code section at issue as “provide[ing] that the tribal corporations may sue
and be sued.”179 While the paraphrased information is helpful, researchers who want to
view the actual text of the tribal code in context will encounter some difficulty, as described in the preceding paragraph. The author of the opinion had no way of knowing the
link included for the tribal code would succumb to link rot when it was included in the
opinion. Including the actual text of the tribal code at issue would insure that future researchers could accurately view the cited tribal code provision.
More advanced searching skills are required to fix rotten links in other appellate
opinions. In Moore v. Oklahoma Employment Securities Commission, the opinion cites the
School Board Precedent Manual for a definition of good cause for terminating an employee.180 The opinion distinguished the definition found in the Manual from applicable
case law cited by the parties. The Manual and the definition it contained were important
to the court’s reasoning.181
The link provided for the manual is: http://www.ok.gov/oesc_web/OESC/
UI_Precedent—Manual/.182 The link returns a “Error 404” page.183 A savvy researcher
can modify the link to make it operational by changing the “-” character to a “_” character.
174. Parris, 2009 Okla. Civ. App. ¶ 14 n. 5, 284 P.3d at 1134. The link provided in the opinion is http://findarticles.com/p/articles/mi_qa3725/is_200606/ai_n 17189011. Id. When entered into the Chrome browser the link
resolves to http://www.search.com/search [http://perma.cc/3YNM-D3AQ].
175. Homepage, ARCHIVES OF PATHOLOGY, http://www.archivesofpathology.org/ [http://perma.cc/C6G6NB5C].
176. 2008 OK 10, ¶ 4 n. 2, 192 P.3d 810, 813 n. 2 (citing http://www.ntjrc.org/ccfo lder/absentee_shawnee_
tribalcodemenu.htm).
177. Id. (citing [http://perma.cc/3ZPV-272C]).
178. Id. (citing http://www.absenteeshawneetribe-nsn.gov/Constitution.aspx [http://perma.cc/VPQ4-DVV5];
http://www.narf.org/nill/tribes/absentee.html [http://perma.cc/ZQP5-BRWN]; http://thorpe.ou.edu/codes/absshaw/ [http://perma.cc/B3GT-ZZ4F]. The correct tribal code provision is found under Corporations at Section
III, 101. http://www.narf.org/nill/codes/absentee-shawnee/corporations_ch_1.html [http://perma.cc/Y6HQ29QW].
179. Id. 2008 OK ¶ 4, 192 P.3d at 813.
180. 2013 Okla. Civ. App. 46, ¶ 15, 301 P.3d 885, 890.
181. Id.
182. Id.
183. See Id. (citing http://www.ok.gov/oesc_web/OESC/UI_Precedent—Manual/ [http://perma.cc/2JBMYNXX]).
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The modified link returns the Manual cited in the opinion.184 Not many researchers have
the knowledge or ability to modify links. Many researchers would simply give up after
receiving the “Error 404” page. The unavailability of the Manual may frustrate researchers
wanting to examine the logical underpinnings of the court’s reasoning.
The initial unavailability of the cited source is somewhat mitigated by the opinion’s
quotation of relevant language from the Manual. Researchers who want to view the source
in context and examine other potentially relevant provisions of the Manual may be frustrated by the source’s unavailability. Researchers unable to view the entire source cited in
an appellate judicial opinion may lose confidence in the opinion’s underlying analysis and
reasoning.
The opinion in L’ggrke v. Sherman cites the online version of several sections of the
Oklahoma State Department of Corrections Policy Manual. 185 The opinion concludes that
the Department of Corrections violated its own policies in not forwarding an inmate his
legal mail.186 The violations were significant enough that the Supreme Court recalled a
previously issued Court of Criminal Appeals Mandate and allowed the appellant to file out
of time.187
A researcher attempting to view the Manual sections as cited in the opinion will be
taken to “Error 404” pages.188 The Manual may be retrieved using the Internet Archive’s
Wayback Machine.189 The Wayback Machine is a digital archive of 450 billion
webpages.190 To locate the Manual a researcher must know that the Wayback Machine
exists and know how to use it. A researcher unfamiliar with the Wayback Machine would
assume the Manual is simply not available. The quotation of language from the Manual in
the opinion mitigates the rotten link provided to the Manual.
The unavailability of the complete Manual to all but the most expert researcher
makes it difficult to view the cited language in the context of other provisions of the Manual. A researcher may want to view other provisions of the manual to better understand
the meaning of the terms cited or locate provisions relating to their applicability. Researchers unable to view the cited Manual may lose confidence in the logical underpinnings of
the L’ggrke opinion.
A concurring opinion in Cossey v. Cherokee Nation Enterprises, LLC, cites a treatise
available online for a historical discussion of the Cherokee tribe’s judicial system and
184. Moore, 2013 Okla. Civ. App. 46, 301 P.3d 885.
185. 2009 OK 80, ¶¶ 3 n. 2, 6, 223 P.3d 383, 384-85 (citing http://www.doc.state.ok.us/Offtech/op030117.pdf
[http://perma.cc/2TLZ-MVLS]; http://www.doc.state.ok.us/Offtech/op030120.pdf [http://perma.cc/MF8ZS83D]).
186. Id.
187. Id.
188. Id. (citing http://www.doc.state.ok.us/Offtech/op030117.pdf [http://perma.cc/2TLZ-MVLS] and
http://www.doc.state.ok.us/Offtech/op030120.pdf [http://perma.cc/MF8Z-S83D]).
189. http://www.doc.state.ok.us/Offtech/op030117.pdf may be accessed in the Internet Archive at
https://perma.cc/SQY8-BWXZ. http://www.doc.state.ok.us/Offtech/op030120.pdf may be accessed in the Internet Archive at https://perma.cc/BTT7-L6XC.
190. See Homepage, WAYBACK MACHINE, https://archive.org/web/. The discussion of the Internet Archive’s
Wayback Machine is adapted from Peoples, Internet Citations in Okla. Att'y Gen. Opinions, supra note 7, at 352.
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courthouses.191 The development of the tribe’s court system was a legal issue in the
case.192 As stated in the concurring opinion “[w]hether tort claim litigation infringes upon
tribal self-government could depend upon whether the tribe has established an appropriate
court system.”193 The link provided in the concurring opinion does not lead to the treatise.194 A savvy researcher with some knowledge of Oklahoma digital historical archives
can locate the treatise in the Oklahoma Historical Society’s Chronicles of Oklahoma. 195
The Chronicles began as a quarterly magazine devoted to the history of Oklahoma. 196 An
average researcher confronting the rotten link in the concurring opinion could not be reasonably expected to know that the treatise is available in the Chronicles of Oklahoma.
C.
Reference Rot in Appellate Judicial Opinions
The opinions discussed in the previous section contain examples of link rot.197 Link
rot can be extremely frustrating for a researcher attempting to view cited language in context or verify exactly what a cited source says. Researchers examining Oklahoma appellate
judicial opinions will also be frustrated by reference rot.
Reference rot describes a link that “still works but the information referenced by the
citation is no longer present, or has changed.” 198 Studies have found that 70% of links in
Harvard law journals and 50% of links in U.S. Supreme Court opinions were afflicted with
reference rot.199 By comparison, links in Oklahoma appellate judicial opinions have a
lower rate of reference rot. Ten percent of links in appellate judicial opinions suffered from
reference rot.200 This reference rot rate is comparable with the 13% of links in Oklahoma
attorney general opinions that have succumbed to reference rot. 201
The opinion In re Reinstatement of Raichle involved the reinstatement of a lawyer
to the practice of law.202 The opinion notes that the Oklahoma Bar Association (OBA)
conducted an investigation to determine if the petitioner had engaged in the unauthorized
practice of law during the term of his suspension. 203 The investigation revealed that the
website of a law firm the petitioner was associated with “could be construed to reflect that
191. Cossey v. Cherokee Nation Enterprises, LLC, 2009 OK 6, ¶¶ 30-32, 212 P.3d 447, 479 (Kauger, J., concurring in part) (citing George O’Dell, Professor of Anthropology, “Saline
Courthouse,” www.personal.utulsa.edu; O’Dell, “Cherokees Fund Restoration Project for Historic Courthouses,” NATIVE AMERICAN TIMES (retrieved Oct. 30, 2008)).
192. Cossey, 2009 OK ¶ 13, 212 P.3d at 457.
193. Id., 2009 OK ¶ 30, 212 P.3d at 479 (Kauger, J., concurring in part).
194. Test Page, Red Hat Enterprise, http://perma.cc/T4LD-UWZV?type=live.
195. See Omer L. Morgan, The Saline Courthouse Massacre, CHRONICLES OF OKLAHOMA http://digital.library.okstate.edu/chronicles/v033/v033p087.pdf [http://perma.cc/ZRT9-6GYK].
196. Editorial, Volume 1, No. 1, CHRONICLES OF OKLAHOMA, (Jan. 1921) http://digital.library.okstate.edu/Chronicles/v001/v001p003.html [http://perma.cc/8UME-BCZW].
197. Adapted from Peoples, Internet Citations in Okla. Att'y Gen. Opinions, supra note 7, at 352.
198. Zittrain, et al., supra note 151, at 166.
199. Peoples, Internet Citations in Okla. Att'y Gen. Opinions, supra note 7, at 363 (citing Zittrain, et al., supra
note 151, at 166).
200. Ten out of the 105 Internet links in Oklahoma appellate judicial opinions suffered from reference rot.
201. Peoples, Internet Citations in Okla. Att'y Gen. Opinions, supra note 7, at 363.
202. 2003 OK 71, ¶ 1, 77 P.3d 1032, 1033.
203. Id. 2003 OK ¶ 4, 77 P.3d at 1033.
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the petitioner was a current member of the OBA.” 204 The opinion does not include a URL
for the law firm website. A Google search returned the website as it currently exists, not
as the court viewed it when the opinion was issued in 2003.205 The current version of the
website does not contain any information about the petitioner. However, a researcher familiar with the Wayback Machine can use it to pull up a version of the firm’s website in
2002 which includes biographical data about the petitioner.206
The opinion in In re Initiative Petition No. 379, State Question 726, discussed supra,
includes a reference to the proponent of the initiative petition’s website.207 The proponent
took the legal position that if circulators came into Oklahoma with the intention of staying
for the duration of the petition drive or could provide an address within the state, they were
considered state residents.208 The opinion notes this is not a correct interpretation of Oklahoma law and cites the proponent’s website as evidence that it portends to have “essential elements of a campaign including knowledge of local laws.” 209 The website as cited
in the opinion is accessible but does not contain any mention of the proponent having
knowledge of local laws.210 The absence of this statement from the website is mitigated
by the fact that the opinion included a verbatim quotation from the website. 211 However,
researchers who attempt to verify this information or read other portions of the website to
place the quotation in context are unable to view the website as it existed at the time the
court viewed it.
Embry v. Innovative Aftermarket Sys. L.P. involved a claim of bad faith against a
gap insurance provider.212 The opinion quotes a description of gap insurance from the
defendant’s website. The description forms part of the opinion’s reasoning that the gap
insurance contract at issue in the case involved “the special relationship necessary to support tort recovery for bad faith.”213 The defendant’s website no longer includes the exact
statement referenced in the opinion. In the Embry opinion, as in the Initiative Petition
opinion, discussed supra, the verbatim quotation of the language at issue in the opinion
preserves the website content for the use of future researchers. 214
A final illustrative example of reference rot is found in CPT Asset Backed Certificates, Series 2004-EC1 v. Cin Kham.215 The opinion quotes several passages from the
website of the Mortgage Electronic Registration Systems Inc. (MERS). Unfortunately the
opinion does not provide a URL for the website, instead referring to it as “MERS web
204. In re Reinstatement of Raichle, 2003 OK 71, ¶ 4, 77 P.3d 1032, 1033.
205. See Homepage, SIMMONS HANLY CONROY, http://www.simmonsfirm.com [http://perma.cc/JF92-9UP4].
206. See Attorneys and Staff, SIMMONS HANLY CONROY, https://perma.cc/ZA25-P2Q9.
207. 2006 OK 89, ¶ 18 n. 41, 155 P.3d 32, 41 n. 41 (citing http://directdemocracy.com/).
208. Id.
209. Id.
210. The website http://directdemocracy.com/ was accessible during the fall of 2015 but no longer functioned
as of December 3, 2015. Archived versions of the website are available through the Internet Archive.
https://web.archive.org/web/*/www.directdemocracy.com [https://perma.cc/WE2W-4G3U].
211. Id.
212. Embry v. Innovative Aftermarket Sys. L.P., 2010 OK 82, ¶¶ 0, 9, 247 P.3d 1158, 1158, 1160.
213. Id. 2010 OK ¶ 9, 247 P.3d at 1160.
214. Id.
215. See 2012 OK 22, ¶ 4, 278 P.3d 586, 588.
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page overview.”216 A Google search for MERS returned what appears to be the website
of the Mortgage Electronic Registration Systems Inc. None of the quoted passages can be
located on the MERS website. Researchers attempting to view the cited language in context may have difficulty determining what website the opinion was citing because the opinion does not include a URL.217 Researchers who are able to locate the MERS website will
discover that the language quoted in the opinion no longer exists on the website.
D.
Internet Resources Cited in Appellate Briefs
Examining Internet citations in briefs filed with Oklahoma appellate courts is helpful
in understanding how the appellate courts use the Internet. An appellate court may decide
to cite an Internet resource because it is cited in a brief filed with the court. Alternatively,
an Internet resource cited in a brief may impact the court’s thinking without being cited in
the court’s opinion.
The search used to locate Oklahoma appellate judicial opinions citing Internet resources was duplicated to locate briefs citing Internet resources. The search was run in the
WestlawNext database of Oklahoma Briefs.218 The search returned a total of 192 briefs
citing an Internet resource for factual information or to support the logic or reasoning of
the brief. The total number of links found in all briefs was 224.
WestlawNext’s Oklahoma Briefs database contains selected briefs filed with the Oklahoma Supreme Court, with coverage beginning in 2007.219 The database does not include briefs filed with Oklahoma’s two additional appellate courts. The database contains
selected briefs and, thus, not all briefs filed with the Oklahoma Supreme Court are included. For example, forty-eight Supreme Court opinions citing an Internet resource were
included in the data set for this study. The WestlawNext Oklahoma Briefs database includes briefs for only twenty-three of the forty-eight Supreme Court Opinions.220
The Oklahoma Briefs database does not include every brief filed in a particular appellate case. The database contained only forty-nine briefs for the twenty-three Supreme
Court opinions with briefs available in WestlawNext. Reviewing the dockets for these
cases on OSCN.net revealed that a total of 237 briefs were filed in these twenty-three
cases. On average the WestlawNext Oklahoma Briefs database contains only twenty percent of the actual briefs filed in an Oklahoma Supreme Court case.
The study data reveals an interesting pattern in the citation of Internet resources in
Oklahoma appellate judicial opinions. The Oklahoma Supreme Court cites Internet resources less frequently when compared with attorneys writing appellate briefs to the Court.
From 1998 to 2015 only forty-eight Oklahoma Supreme Court opinions cited an Internet
resource for factual information or to support the logic or reasoning of the opinion. In
contrast, 192 briefs available in the WestlawNext Oklahoma Briefs database from 2007 to
2015 cited Internet resources for factual information or to support the logic or reasoning
216. Id. 2012 OK ¶ 4 n. 6, 278 P.3d at 588 n. 6.
217. See id.
218. ADV: WWW HTTPS HTTP WEBSITE INTERNET “WEB PAGE”.
219. Oklahoma Briefs ,WESTLAWNEXT.
220. A separate search was performed to verify if briefs were available for each opinion examined in this
study. The search described supra at note 218 was not used because it could potentially exclude briefs that do
not cite an Internet resource. Id.
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of a brief. The number of all briefs citing Internet resources during this time period is likely
much higher, as the WestlawNext Oklahoma Briefs database contains only “selected
briefs.” Also, the sample size of briefs available in WestlawNext covers only eight years
while the sample size of Oklahoma Supreme Court opinions examined in this study is over
twice as large at seventeen years.
An illustrative example of the Supreme Court’s restraint in citing Internet resources
can be found in the opinion in Cline v. Oklahoma Coalition for Reproductive Justice.221
The Cline case involved a challenge to an Oklahoma law requiring abortion drugs to be
administered according to FDA requirements. 222 The case attracted public attention and
was eventually appealed to the Supreme Court of the United States. Briefs filed with the
Oklahoma Supreme Court contained no less than nine citations to Internet resources.
Briefs filed in the subsequent appeal to the Supreme Court of the United States contained
no less than twenty-eight citations to Internet resources.223 In its opinion, the Oklahoma
Supreme Court cited just one website as a source for an FDA Information Sheet at issue
in the case.224
Another example of the Oklahoma Supreme Court’s restraint is found in the case of
State ex rel. Protective Health Servs. State Dep’t of Health v. Vaughn.225 In the Vaughn
case, the Court cited the State Department of Health’s website. However, the Court noted
that the citation was for “illustrative purposes only” 226 and that the Court “do[es] not rely
on these pages in reaching our decision today.”227
E.
Link and Reference Rot in Appellate Briefs
Initially, sixty-three out of the 224 links cited in briefs did not work. Many of these
links failed because WestlawNext inserted extra spaces into the links. Of the sixty-three
that initially failed, forty-four could be made to work by removing extra spaces inserted
by WestlawNext leaving nineteen links that did not work. Sixteen of these nineteen Internet resources could be located by conducting advanced Internet searching, leaving only
three links that could not be located.
221. 2013 OK 93, 313 P.3d 253.
222. Id. See also Cline v. Okla. Coal. for Reprod. Justice, SCOTUS BLOG, http://www.scotusblog.com/casefiles/cases/cline-v-oklahoma-coalition-for-reproductive-justice/ [http://perma.cc/X49A-W8T7].
223. Citations to Internet resources in briefs filed with the Oklahoma Supreme Court include: Respondents
Answer Brief at 9, Cline, 2013 OK 93, 313 P.3d 253, 2013 WL 5806204 (seven citations to Internet resources)
and Petitioners’ Reply Brief, Id. at 2013 WL 5806205 (two citations to Internet resources). Citations to Internet
resources in briefs filed with the Supreme Court of the United States include: Brief of Amici Curiae of the Family
Research Council and Alliance Defending Freedom in Support of Petitioners at ii, 2013 WL 1412082 (eight
citations to Internet resources); Brief of Amici Curiae Dr. John Thorp, M.D., FACOG; Dr. John Seeds, M.D.,
FACOG; The American Association of Pro-Life Obstetrician and Gynecologists (AAPLOG); The Christian
Medical & Dental Association (CMDA); and the Catholic Medical Association (CMA) in Support of Petitioners,
2013 WL 1491671 (five citations to Internet resources); Amicus Curiae Brief of 79 Oklahoma Legislators in
Support of Petitioners, Cline v. Oklahoma Coalition for Reproductive Justice, 2013 WL 1491672 (U.S.) (eight
citations to Internet resources); and, Brief Of Women And Families Hurt By RU-486 As Amici Curiae In Support
Of Petitioners, Cline v. Oklahoma Coalition for Reproductive Justice, 2013 WL 1450985 (U.S.) (eight citations
to Internet resources).
224. Cline, 2013 OK ¶ 21 n. 20, 313 P.3d at 261 n. 20.
225. See 2009 OK 61, 222 P.3d 1058.
226. Id. 2009 OK ¶ 12 n. 12, 222 P.3d at 1065 n. 12
227. Id.
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The rate of link rot in WestlawNext’s Oklahoma Briefs database was one percent
(three out of 224 links did not work). This figure seems low when compared with the thirty
percent link rot rate for links in Oklahoma appellate judicial opinions discussed above in
Section III B. However, a direct comparison between briefs and judicial opinions is not
valid given the incompleteness of the WestlawNext Oklahoma Briefs database which contains only mixed coverage of briefs filed with the Supreme Court and excludes briefs filed
with Oklahoma’s two additional appellate courts. Additionally, a direct comparison is not
possible because the Oklahoma Briefs database covers only eight years while Oklahoma
appellate opinions have been citing Internet resources for the past seventeen years. In reality, the actual rate of link rot in Oklahoma appellate briefs is likely much higher.
Additional research was conducted to determine how many Internet resources cited
in Oklahoma appellate briefs suffered from reference rot. Reference rot is used to describe
a link that is functional but that does not return the information it was cited for. 228 Research
revealed that 147 of the 221 Internet resources cited in appellate briefs contained the information they were cited for. The remaining seventy-four websites, or thirty-three percent, did not contain the information they were cited for and suffered from reference rot.
Although a direct comparison is not completely valid, this rate is much higher than the ten
percent reference rot rate found in Oklahoma appellate judicial opinions. The actual rate
of reference rot is likely much higher in light of the incompleteness and limited time frame
covered by the WestlawNext Oklahoma Briefs database.
Link and reference rot in Oklahoma appellate opinions and attorneys’ briefs is frustrating to members of the legal profession and the general public. Link and reference rot
hinder the ability of the judiciary to locate cited resources cited in briefs and to view them
in context. Researchers who encounter link or reference rot in an opinion or brief may
legitimately question the authoritativeness of the opinion or brief that cited the link.
F.
Skills Required to Locate Information Hidden by Link or Reference Rot
As explained in the preceding sections, advanced Internet searching was conducted
to locate Internet resources cited in appellate opinions and briefs but made inaccessible by
link or reference rot.229 The level of skill required to locate these otherwise inaccessible
resources varied from expert to novice level. The general public, lawyers, and judges may
not possess the skills required to locate these resources.
Decades of research has demonstrated a lack of Internet research skills among all
segments of the population. A 2002 study found that many Internet users did not have even
basic skills or the ability to formulate a simple Internet search. 230 A 2010 study refuted
the perception that “young users are generally savvy with digital media.” 231 The study
found “considerable variation . . . even among fully wired college students when it comes
228. Zittrain et al., supra note 151.
229. This section was adapted from Peoples, Internet Citations in Okla. Att'y Gen. Opinions, supra note 7, at
356.
230. Eszter Hargittai, Beyond Logs and Surveys: In-Depth Measures of People’s Web Use Skills, 53 J. AM.
SOC’Y INFO. SCI. & TECH. 1239, 1243 (2002).
231. Eszter Hargittai, Digital Na(t)ives? Variation in Internet Skills and Uses Among Members of the “Net
Generation,” 80 SOC. INQUIRY 92, 108 (2010).
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to understanding various aspects of Internet use. Moreover, these differences are not randomly distributed. Students of lower socioeconomic status, women, students of Hispanic
origin, and African Americans exhibit lower levels of Web know-how than others.”232
Other studies demonstrate that lawyers and law students do not possess advanced
Internet research skills. A 2011 study found that sixty percent of law students did not validate information retrieved from free websites.233 A study of nearly 3,600 law students
revealed that “it was unclear if the respondents understood that reliability might be an issue
with the sources that they use.”234 The research abilities of recent law school graduates
was critiqued in another study concluding that “[l]egal professionals in particular are critical of new lawyers’ research skills; they say that these new lawyers are unprepared to
conduct legal research and that their research skills are unsophisticated.” 235
The research skills of more experienced lawyers are also lacking. A recent study
found that “[e]mployers, particularly those with more years in practice, rely on new attorneys to be research experts.”236 One attorney commented “I really have a huge reliance
on [the person] . . . doing my research for me because I don’t do it.”237 Another study
found a “decline in the research competency of legal practitioners” and found “a gap in
the research skills and knowledge of legal resources among attorneys in general, not just
new associates.”238
The advanced Internet searching conducted in this study to locate information hidden by link or reference rot does not excuse the harm caused by including inaccessible
sources in appellate opinions or briefs. Many lawyers, law students, and the public at large
do not have the Internet searching skills to locate information made inaccessible by link
or reference rot. When these researchers come across a link in an appellate opinion or brief
they will likely assume the source is unavailable. As explained in the next section, links to
unavailable sources can diminish confidence in the law, weaken stare decisis, and hinder
the development of the law.
232. Id.
233. Aliza B. Kaplan & Kathleen Darvil, Think [and Practice] Like a Lawyer: Legal Research for the New
Millennials, 8 LEGAL COMM. & RHETORIC: JALWD 153, 167 (2011).
234. Michelle M. Wu & Leslie A. Lee, An Empirical Study on the Research and Critical Evaluation Skills of
Law Students, 31 LEGAL REFERENCE SERVS. Q. 205 (2012).
235. Kaplan & Darvil, supra note 233, at 156. In response, the American Association of Law Libraries first
created Competencies and Standards for Law Student Information Literacy (approved July 2012),
http://www.aallnet.org/Archived/Leadership-Governance/policies/PublicPolicies/policy-lawstu.html
[http://perma.cc/T9WX-FTKU], then reformulated them as Principles and Standards for Legal Research Competency in 2013, see PRINCIPLES AND STANDARDS FOR LEGAL RESEARCH COMPETENCY (2013) http://www.aallnet.org/Documents/Leadership-Governance/Policies/policy-legalrescompetencybody.pdf
[http://perma.cc/NUG4-XJ6F]; see also Ellie Margolis & Kristen E. Murray, Say Goodbye to the Books: Information Literacy as the New Legal Research Paradigm (Temple Univ. Legal Stud. Research Paper Series No.
2012-34), http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2125278 [http://perma.cc/9JCC-AL3D]. This and
other portions of this section were adapted from Peoples, Internet Citations in Okla. Att'y Gen. Opinions, supra
note 7, at 356.
236. Susan C. Wawrose, What Do Legal Employers Want to See in New Graduates? Using Focus Groups to
Find Out, 39 OHIO N.U. L. REV. 505, 532 (2013).
237. Id.
238. Christina Elizabeth Peura, Electronic Legal Research Tools: An Examination of the Resources Available,
Training of New Attorneys, and Employer Expectations, 33 LEGAL REFERENCE SERVS. Q. 269, 277, 282 (2014).
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IV. THE CONSEQUENCES OF LINK AND REFERENCE ROT
Link and reference rot in appellate briefs and opinions diminish public confidence
in the legal system.239 As explained by Collen Barger:
When . . . a court purportedly bases its understanding of the law or the law’s application to
case facts upon a source that cannot subsequently be located or confirmed, the significance
of the citation to that source becomes more ominous. If present readers of the opinion cannot
determine how much persuasive weight was or should be accorded to the unavailable source,
they have little reason to place much confidence in the opinion’s authoritativeness. 240
Transparency and accountability are core values of the common law system. The
Canadian legal scholar Karen Eltis provides the following example from a decision of the
Supreme Court of Canada: “Reasons for judgment are the primary mechanisms by which
judges account to the parties and to the public for the decisions they render. The courts
frequently say that justice must not only be done but must be seen to be done.” 241 In the
context of judges citing unreliable information, Eltis notes:
Public access to the court’s “thought process” is an integral element of the much-cherished
value of transparency and forms the basis for the public’s confidence in the judiciary. These
“thought processes,” however, cannot be subject to proper scrutiny—be it public, academic,
or appellate—unless the sources that nourish it are clearly and verifiably identifiable.242
Citations to authority in appellate briefs and opinions that have succumbed to link
and reference rot are harmful to the doctrine of stare decisis. For centuries the sources
cited in appellate briefs and opinions were readily accessible.243 Citations in these documents have traditionally been to a “stable universe of settled sources.” 244 These settled
sources consisted of print materials that are “essentially fixed for all time.” 245 Citations to
sources in a brief or legal opinion are more than just a reference to the source’s content.
They send a signal to the reader of the nature of the authority upon which a statement is
based.246
When sources cited for something important in an appellate opinion are unavailable
due to link or reference rot, a component of the opinion vanishes as well. 247 Lawyers,
judges, or members of the public who are unable to access the sources cited in support of
the brief or opinion’s conclusion may reasonably question the document’s validity. The
239. This section is adapted from Peoples, Internet Citations in Okla. Att'y Gen. Opinions, supra note 7, at
358.
240. Coleen M. Barger, On the Internet, Nobody Knows You’re A Judge: Appellate Courts’ Use of Internet
Materials, 4 J. APP. PRAC. & PROCESS 417, 429–30 (2002).
241. ELTIS, supra note 131, at 31.
242. Id. (footnote omitted).
243. Michael Whiteman, The Death of Twentieth-Century Authority, 58 UCLA L. Rev. (DISCOURSE) 27, 32
(2010).
244. Peoples, Citation of Wikipedia, supra note 12, at 36 (quoting Robert C. Berring, Legal Information and
the Search for Cognitive Authority, 88 CAL. L. REV. 1673, 1675 (2000).
245. Id.
246. Paul Axel-Lute, Legal Citation from Theory to Practice, 75 LAW LIBR. J. 148 (1982).
247. Whiteman & Frazier, supra note 162, at 22; see also MICHIGAN APPELLATE OPINION MANUAL at 50
(noting “the inability of future readers to view and learn more about the material cited in an opinion undermines
the precedent.”).
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inaccessibility of these sources undermines the brief or opinion’s authority and introduces
instability and uncertainty into the law. 248 As Michael Whiteman explains, “legal arguments are constructed on a foundation of supporting authorities, and, like any construction,
they can fail if their foundation is not secure.”249 Courts may no longer be able to “let the
decision stand if the cited authority is no longer available.” 250
The unavailability of sources cited in appellate briefs and opinions will slow the
development of the law. “Citations leave bread crumb trails for future readers allowing
them to retrace the logical steps of an argument. Accurate and complete citations are essential for unpacking legal arguments, advocating for their expansion or contraction in
future cases, and for developing the law.” 251 An essential component of lawyering is analogizing and distinguishing sources cited in primary legal authority. 252 When cited sources
are unavailable, it becomes difficult or impossible for lawyers to develop creative legal
arguments based on the missing sources.253
Several judicial opinions included rotten links referencing material at state and federal government websites. In Hicks v. State ex rel. Oklahoma Dept. of Corrections the
opinion cites a Department of Corrections PDF document for the definition of a request
and a grievance.254 The link provided in the opinion returns a “404 error” message.255 In
West v. Board of County Commissioners of Pawnee County, the Oklahoma Supreme Court
cited the United States Department of Labor website for information used to calculate a
potential damage award based on lost wages. 256 The link included in the West opinion
returns a file not found error page.
It is unfortunate to discover rotten links to government information given the statutory mandates for state and federal governments to provide access to information via the
Internet. The purpose of the federal E-Government Act of 2002 is to “increase access to
Government information and increase citizen participation in Government.” 257 The Act
mandates that federal agencies “use information technology to engage the public in the
development and implementation of policies and programs.” 258 Similarly, the State of Oklahoma has enacted laws and appropriated funds to provide constituents with state of the
248. MICHIGAN APPELLATE OPINION MANUAL at 48.
249. Id. at 33.
250. Eric J. Magnuson & Samuel A. Thumma, Prospects and Problems Associated with Technological Change
in Appellate Courts: Envisioning the Appeal of the Future, 15 J. APP. PRAC. & PROCESS 111, 122–23 (2014).
251. Peoples, Citation of Wikipedia, supra note 12, at 36.
252. Aldrich, supra note 162, at 220.
253. MICHIGAN APPELLATE OPINION MANUAL 50 (noting “an opinion with a citation that cannot be examined
in full may result in an incorrect understanding of the opinion”).
254. Hicks v. State ex rel. Oklahoma Dep’t of Corr., 2009 Okla. Civ. App. 91, ¶ 2, 227 P.3d 1097, 1098.
255. Id. (citing www.doc.state.ok.us/offtech/op090124.pdf). Links to DOC webpages cited in other appellate
judicial opinions suffered from link rot. See L’ggrke, 2009 OK 80, ¶¶ 3, 6, 223 P.3d 383, 385; Starkey v. Okla.
Dept. of Corrections, 2013 OK 43, ¶ 52, 305 P.3d 1004, 1023.
256. West, 2011 OK 104, ¶ 20 n. 2513, 273 P.3d 31, 38 n. 256.
257. Pub. L. No. 107-347, § 2(a)(2).
258. Id. at § 202(e).
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art electronic commerce and Internet tools. 259 The public’s access to information and ability to participate in government is diminished when state and federal websites succumb to
link or reference rot.
V.
RECOMMENDATIONS260
Appellate judges and attorneys have no control over the longevity or stability of the
Internet resources they cite. Websites are reorganized over time and links change; content
is updated, revised, or removed entirely; organizations responsible for websites change
focus or are dissolved. Judges and attorneys can reduce the chances that cited links will
suffer link or reference rot or link rot by carefully choosing which links to include in their
opinions and briefs.
Keeping an archival copy of any Internet resource cited for important factual information or to support the logic or reasoning of a brief or judicial opinion is the most prudent
course of action.
The Judicial Conference of the United States released Guidelines on Citing to, Capturing, and Maintaining Internet Resources in Judicial Opinions/Using Hyperlinks in Judicial Opinions in 2009.261 The Guidelines were developed following the Judicial Conference’s adoption of a policy that “all Internet materials cited in final opinions be
considered for preservation and that each judge should retain the discretion to decide
whether the specific cited resource should be captured and preserved.” 262
The guidelines urge judges to evaluate Internet sources using the same criteria that
apply to traditional media, including accuracy, scope of coverage, objectivity, timeliness,
authority, and verifiability. 263 When citing an Internet source, judges are urged to select
sources that “should be stable and likely to remain accessible using the citation the judge
employed when originally visiting the site.” 264 The Guidelines recommend that any Internet resource that is “fundamental to the reasoning of the opinion and refers to a legal authority or precedent that cannot be obtained in any other format” be preserved as part of a
court’s opinion on the Case Management / Electronic Case Files (CM/ECF) system.265
A 2014 symposium titled “404/File Not Found: Link Rot, Legal Citation and Projects to Preserve Precedent” produced a set of “linking best practices” that may be helpful
in preserving access to Internet resources cited in Oklahoma appellate briefs and judicial
259. OKLA. STAT. tit. 62, § 34.24 (2015).
260. Portions of this section are adapted from Peoples, Internet Citations in Okla. Att'y Gen. Opinions, supra
note 7, at 370.
261. Letter from James C. Duff to Chief Judges, JUDICIAL CONFERENCE OF THE UNITED STATES, 1 (May 22,
2009), https://perma.cc/QJL3-AQFH?type=pdf. As noted with irony by Liebler & Liebert, an Internet search for
the guidelines returns a page that has succumbed to link rot. Liebler & Liebert, supra note 8, at 291.
262. Letter from James C. Duff, supra note 260 (internal quotation marks omitted).
263. Id. at 1–2.
264. Id. Bluebook Rule 18.2.2 takes a similar approach, urging citation “to the most stable electronic location
available.” The Bluebook: A Uniform System of citation, Rule 18.2.2 (19th ed. 2010).
265. Letter from James C. Duff, supra note 261, at 2.
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opinions.266 The best practices suggest only linking to essential resources, avoiding linking to resources that are likely to disappear or change, and not linking deeply into websites
as these links frequently break.267
Linking to webpages instead of PDF documents is also encouraged by the best practices. In general, webpages are more stable than PDFs for a variety of reasons. The appellate judicial opinions examined in this article contained links to twenty-one PDF documents. Nine of the cited PDFs suffered link rot. Eighteen of the cited PDFs suffered
reference rot. The appellate briefs examined herein cited fifty-four PDF documents. Forty
of the cited PDFs suffered link rot and twelve suffered reference rot. The high failure rate
of links to PDFs in Oklahoma appellate briefs and opinions validates the linking best practices’ advice to avoid linking to PDFs.
A potential solution to the problem of link and reference rot is to print paper copies
of Internet resources cited in appellate briefs and judicial opinions and preserve copies in
the court’s files. Oklahoma Supreme Court Rules require parties citing “additional authorities” to provide paper copies to the court.268 Several of the appellate briefs and opinions
examined in this study included printed copies of cited Internet resources as attachments
to briefs or as part of the appellate record.269 This approach is helpful but is not the best
solution to the problems caused by link and reference rot. Paper copies kept on file with
the Supreme Court Clerk are not quickly and readily accessible by researchers who must
travel to the clerk’s office to view them. Additionally, paper copies will fail to capture any
sound, video, or software files included in any cited Internet resource. 270
Several of the Oklahoma appellate opinions discussed in this study mitigate the impact of link or reference rot by paraphrasing or quoting language from a cited Internet
resource.271 The paraphrased or quoted language is effectively preserved forever in the
text of the court’s opinion. This language can be helpful to a researcher who encounters
link or reference rot. However, paraphrased or quoted language is no substitute for a researcher who wants to examine the language in context. Internet resources that cannot be
266. Linking Best Practices, in 404/FILE NOT FOUND: LINK ROT, LEGAL CITATION AND PROJECTS TO
PRESERVE PRECEDENT 14 (Oct. 24, 2014), http://www.law.georgetown.edu/library/404/upload/Master-document-handout.pdf [perma.cc/KW86-JFBK].
267. Id. at 15.
268. OKLA. STAT. tit. 12 ch. 15, app. 1, Sup. Ct. R. 1.11(K)(3) (2015). The rules also require parties to provide
copies of “statutes or rules not promulgated in Oklahoma,” (Rule 1.11 I(1)) and decisions not included in the
National Reporter System. (Rule 1.11 L.).
269. See Appellant’s Brief in Chief, Wells Fargo, N.A., Plaintiff/Appellee, v. Frank C. Ling, Wen X. Fan,
Defendants/Appellants., John Doe, Jane Doe, Defendants., JP Morgan Chase Bank, N.A., Defendant, Appellee.,
2014 WL 8094863 (Okla.), at *8; Neloms v. State, 2012 Okla. Crim. App. 7, 274 P.3d 161 (noting a defense
exhibit that included printouts of evidence relevant to a prosecution for pornography); Swift v. Serv. Chem., Inc,
2013 Okla. Civ. App. 88, 310 P.3d 1127 (noting cited Internet materials that were included as an exhibit to a
brief).
270. Similar criticisms have been made of the U.S. Supreme Court’s practice of keeping print copies of cited
Internet resources. See Liebler & Liebert, supra note 8, at 300.
271. See, e.g., Bittle v. Bahe, 2008 OK ¶ 4, 192 P.3d at 813; CPT Asset Backed Certificates, Series 2004-EC1
v. Cin Kham, 2012 OK 22, 278 P.3d 586, 588; Moore, 2013 Okla. Civ App. ¶ 15, 301 P.3d at 890; In re Initiative
Petition No. 379, State Question No. 726, 2006 OK 89, ¶ 18, 155 P.3d 32; Embry v. Innovative Aftermarket Sys.
L.P., 2010 OK 82, ¶ 9, 247 P.3d 1158, 1160.
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examined in full because of link or reference rot “may result in an incorrect understanding
of the opinion.”272
The best solution to combat link and reference rot in Oklahoma appellate briefs and
judicial opinions is to store copies of cited Internet resources in a digital archive. This will
ensure perpetual access to any Internet resources cited in a brief or appellate opinion. The
most stable digital archive currently available is Perma. Perma was created by the Harvard
Library Innovation Lab. It is currently used by nearly fifty percent of American law
schools and by courts in Colorado, Indiana, Maryland, Massachusetts, Michigan, and the
Virgin Islands.273 A description of how Perma works is available on its homepage.274
When a user creates a Perma.cc link, Perma.cc archives a copy of the referenced
content, and generates a link to an unalterable hosted instance of the site. Regardless of
what may happen to the original source, if the link is later published by a journal using the
Perma.cc service, the archived version will always be available through the Perma.cc
link.275
Members of the general public can create Perma links that are preserved for two
years. Courts, libraries, and law journals acting as “vesting organizations” are given the
power to permanently archive web content using Perma. The technical infrastructure and
governance of Perma is distributed among libraries around the world. “[S]o long as any
library or successor within the system survives, the links within a Perma architecture will
remain.”276 Perma’s collaborative approach to governance and physical storage of archival copies is superior to several other for-profit web archival solutions. 277
Future Oklahoma appellate opinions citing Internet resources should adopt a parallel
citation format. The citation should include the original link to the Internet resource and a
link to the version stored in the Perma archive. An illustrative example comes from a recent
opinion of the Michigan Supreme Court. The Michigan Supreme Court has been archiving
cited Internet resources with Perma since 2014. Note that the citation includes the
webpage’s original link and a link to the version saved in the Perma archive. 278
A researcher who clicks the Perma link in Detroit Edison Co. v. Dep’t of Treasury
will retrieve a version of the webpage captured close to the date it was viewed by the court.
See Figure 3 for an example. The survey is time-and-date stamped June 19, 2015, 2:32
pm, the same day that the opinion notes it was accessed by the court. This stamp gives
researchers assurance that they are viewing the webpage as it looked when it was viewed
by the court.
272. MICHIGAN APPELLATE OPINION MANUAL 50, http://courts.mi.gov/Courts/Michigan
SupremeCourt/Documents/MiAppOpManual.pdf [http://perma.cc/R8AY-XZ5E].
273. Id.; E-mail from Claire DeMarco, Research Librarian, Harvard Library, Cambridge, Mass. (Feb. 18, 2015,
09:22 CST) (on file with author).
274. See Homepage, PERMA, https://perma.cc/.
275. About Perma, PERMA.CC, https://perma.cc/about [http://perma.cc/8RWN-734R] (last visited Aug. 24,
2015).
276. Zittrain et al., supra note 151, at 167.
277. WEBCITE, http://www.webcitation.org/ [http://perma.cc/TTH6-X3PZ]; ARCHIVE-IT, https://www.archive-it.org/ [https://perma.cc/M7G7-BV8Y].
278. See Detroit Edison Co. v. Dep’t of Treasury 869 N.W.2d 810, 827 n. 12 (Mich. 2015) (citing an Internet
resource: General Electric, Electricity 101–Learn the Basics of Production https:// powergen.gepower.com/planbuild/tools-resources/ power-generation-basics/ electricity–101.htmlD [http://perma.cc/95UD-MQD3] (accessed
June 19, 2015).
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Figure 3
Perma Archived Webpage with Time and Date Stamp
Some changes to applicable court rules may be required if the Oklahoma appellate
courts become a Perma vesting organization. In light of the prevalence of link and reference rot in Internet resources cited in attorneys’ briefs, Oklahoma Appellate Courts should
consider adopting a rule requiring attorneys to archive Internet resources cited in briefs
using Perma. Oklahoma Appellate courts may wish to provide additional guidance to attorneys, judges, or court staff regarding specific websites to avoid, best practices for formatting citations, and other stylistic preferences.
Guidelines adopted by the Michigan and Virgin Islands supreme courts provide examples of potential rule changes. The Supreme Court of the Virgin Islands amended its
Style Guide to include the following rule on Internet citations:
As with all other citations, references to sources found on the Internet must provide enough
information to allow the reader to locate the material. If there is a concern that the material
on the website may change, the citation should refer to the archived version of the website
created through the Supreme Court’s Perma.cc account. The styles described in Bluebook
Rule 18 and its various sub-components should be followed when citing to the several types
of online sources (e.g., dynamic webpages/websites, blogs, etc.) described in Bluebook Rule
18.1. Example: Dwyer Arce, US House approves Puerto Rico status referendum bill,
JURIST (Apr. 30, 2010), http://perma.cc/L2RE-54AS.279
The Bluebook rule cited in the Virgin Islands Style Guide was updated in the summer
of 2015. The 20th edition of the Bluebook encourages archiving Internet sources using a
reliable archival tool and includes a Perma archival URL as an example. 280 The inclusion
of a Perma archival URL as an example indicates that Perma satisfies the Bluebook definition of a “reliable tool.”
279. http://www.visupremecourt.org/wfData/files/Order%20Amending%20IOPs%20Final.pdf
[https://perma.cc/WEQ5-EHRG].
280. The Bluebook, supra note 264, Rule 18.2.1(d).
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The Michigan Supreme Court’s Appellate Opinion Manual notes that “the Reporter’s Office now attempts to archive Internet materials cited in published opinions.” 281
The Manual recommends not citing websites that require subscriptions or payments, websites containing video, and long articles split between multiple webpages. 282 These particular sources can be difficult to archive. The Manual provides specific examples of how to
cite blogs and lengthy URLs.283
The rules adopted by the Virgin Islands and Michigan Supreme Courts are internal
rules meant to guide the judiciary and their staff in drafting opinions. 284 The rules technically do not apply to attorneys submitting briefs to the courts. However, careful appellate
practitioners should take note of the rules and draft their briefs in accordance with the
courts’ stated preferences.285 The rules provide helpful examples that could be adopted in
Oklahoma to ensure the long-term stability of resources cited in appellate briefs and judicial opinions.
VI. CONCLUSION
Oklahoma appellate courts have been thoughtful in their citation of Internet resources in their opinions. Oklahoma appellate judicial opinions cite to the Internet less
frequently than the Supreme Court of the United States but more frequently than other
state appellate courts.286 The version of Rule 2.9 adopted by Oklahoma gives appellate
courts significant discretion to conduct independent research using the Internet. Parties
should be given notice and an opportunity to respond when appellate courts conduct independent research into adjudicative facts. This simple safeguard will help alleviate potential
violations of due process rights, Sixth and Seventh Amendment jury trial rights, and will
help uphold the traditions of the American legal system.
Oklahoma judges and lawyers should be aware of link and reference rot when citing
Internet resources in their work. Thirty percent of the links included in Oklahoma appellate
opinions have succumbed to link or reference rot. This failure rate is lower than rates of
link rot found in other state judicial opinions but slightly higher than the failure rate of
links found in U.S. Supreme Court opinions. The rate of reference rot in Oklahoma appellate opinions is lower than instances of reference rot in Harvard law journals or U.S. Supreme Court opinions.
281. By Administrative Order No. 2014-22 the Michigan Supreme Court rescinded the Michigan Uniform
System of Citation and replaced it with the Michigan Appellate Opinion Manual. The Order “encourages others
to use” the Manual. See id. http://courts.mi.gov/Courts/MichiganSupremeCourt/rules/court-rules-admin-matters/Administrative%20Orders/2014-38_2014-11-05_formatted%20order_AO%202014-22.pdf
[http://perma.cc/C7UG-F6LM]. The introduction to the Michigan Appellate Opinion Manual states “we expect
the manual may also be of interest to those who prepare pleadings and filings for submission to the Courts.” See
http://courts.mi.gov/Courts/MichiganSupremeCourt/Documents/MiAppOpManual.pdf [http://perma.cc/R8AYXZ5E]; See also Amy M. Kreig, Michigan Supreme Court Adopts New Citation Manual, ICLE Community
(Nov. 11, 2014, 3:43 PM), http://community.icle.org/blogs/amy-m-krieg/2014/11/11/michigan-supreme-courtadopts-new-citation-manual [http://perma.cc/X8D9-Z2HY].
282. Kreig, supra note 281.
283. Id.
284. Id.
285. Michigan Supreme Court, supra note 281.
286. See Section III. A. Study Methodology and Results and accompanying footnotes.
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The prevalence of link rot in briefs filed with the Oklahoma Supreme Court is extremely low. However, thirty percent of links included in appellate briefs suffer from reference rot. More research is needed to completely understand the instances of link and
reference rot in Oklahoma appellate briefs.
The authority of Oklahoma appellate judicial opinions is weakened when a source
cited for something important in the opinion is unavailable due to link or reference rot.
The transparency and accountability of the work of the judicial branch can be harmed
when sources succumb to link or reference rot. Disappearing sources weaken stare decisis
and hamper the development of the law.
The Oklahoma appellate courts should follow the example set by courts in Colorado,
Indiana, Maryland, Massachusetts, Michigan, and the Virgin Islands and archive Internet
sources cited in their opinions using the Perma digital archive. Including a parallel citation
to the archival copy in each opinion would eradicate link and reference rot from Oklahoma
appellate judicial opinions. An appellate court rule should be adopted requiring attorneys
to archive cited Internet sources using the Perma archive and to include parallel citations
to the archival copy in all court filings.
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